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TMI Blog1981 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... sistance they have rendered to us in the learned counsel for the great assistant they have rendered to us in the delicate and difficult task of adjudicating upon highly sensitive issues arising in these writ petitions. We find, and this is not unusual in cases of this kind, that a considerable amount of passion has been injected into he arguments on both sides and some times passion has been injected into the arguments on both sides and some times passion may appear to lend strength to an argument, but, sitting as Judges, we have to be careful to see that passion does not blind us to logic and predilections pervert proper interpretation of the constitutional provisions. We have to examine the arguments objectively and dispassionately without being swayed by populist approach or sentimental appeal. It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. Reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Aurobindo in this poem Savitri :An inconclusive play is Reason's toil; Each strong idea can use her as its tool; Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . O. No. 66/10/81-Jus. Ministry of Law, Justice and Company Affairs, India, New Delhi - 100 001 March 18, 1981 My dear It has repeatedly been suggested to government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, Kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be from outside the State in which that High Court is situated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction. 2. In this context, I would request you to - (a) obtain from all the Additional judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and(b) obtain from persons who have already been or may in the fut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresents advocates practising on the appellate side, the Bombay Bar Association which represents advocates practising on the original side and the Managing Committee of the Bombay Incorporated Law Society which represents Solicitors practising in the High Court of Bombay, passed resolutions condemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter. Since the circular letter was not withdrawn by the Law Minister, the petitioners filed the present writ petition in the High Court of Bombay challenging the constitutional validity of the circular letter and seeking a declaration that if consent has been given by any Additional Judge or by any person whose name has been or is to be submitted for appointment as a Judge, consequent on or arising form the circular letter, it should be held to be null and void. There were several grounds on which the constitutional validity of the circular letter was challenged but it is not necessary to set them out at the present stage because we shall have occasion to refer to them in detail when we deal with the rival arguments of the parties. The petitioners impleaded the La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner in this writ petition is a senior advocate practising in the Supreme Court and he has not only challenged the constitutional validity of the circular letter issued by the Law minister but also assailed the practice followed by the Central Government in appointing Additional Judges in various High Courts. The grounds on which the constitutional validity of the circular letter is challenged are the same as those taken in the first petition filed by Iqbal Chagla and others, but, so far as the complaint in respect of appointment of Additional Judges is concerned, this writ petition covers new ground not treated by the first writ petition. What made it necessary to include this complaint in the writ petition was the fact that three Additional Judges of Delhi High Court, namely, O. N. Vohra, S. N. Kumar and S. B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from March 7, 1979, and whose term was expiring on the midnight of March 6, 1981 were further appointed as Additional Judges for a period of three months only from March 7, 1981 and these short-term appointments were, according to the petitioner, unjustified by the terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented an application to this Court on May 4, 1981 for an order directing that the writ petition be heard and disposed of before June 6, 1981 and that in any event, the respondents should maintain status quo by extending the period of appointment of Additional Judges in the various High Courts till the disposal of the writ petition. Immediately on filing this application the petitioner requested the Court to fix an early date of hearing of the writ petition so that it could be disposed of before June 6, 1981, but since the Court was closing for the summer vacation from May 9, 1981, it was not possible to fix the hearing of the writ petition till the reopening of the Court after the summer vacation. The petitioner thereupon prayed for an interim order that on the expiration of their term on June 6, 1981, the Additional Judges should be continued and their term extended until the final disposal of the writ petition. But, obviously this was not a prayer which could be granted by the Court because it is for the President and not for the Court to appoint Additional Judges and once the term of an Additional Judge has come to an end by efflux of time, it is not competent for the court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation the petitioner pointed out that there were still large arrears of work in the Delhi High Court and therefore there was no lawful and bona fide reason for the non-continuance of O. N. Vohra and S. N. Kumar and not granting fresh appointments to them was mala fide and unconstitutional and prayed that in the circumstances, an interim order should be made by the Court directing that O. N. Vohra and S. N. Kumar shall continue to function as Judges of the Delhi High Court. Both these applications came up for hearing before the learned Vacation Judge and by an order dated June 6, 1981, the learned Vacation Judge declined to grant interim relief that O. N. Vohra and S. N. Kumar shall continue as Additional Judges but directed that notice be issued to show cause why status quo in respect of these two Judges should not be maintained and continued till the pendency of the writ petition. It appears that no order was thereafter made on the notice, since the writ petition itself was directed to be heard at an early date and in the meanwhile, O. N. Vohra and S. N. Kumar were impleaded as respondents 4 and 5, to the writ petition. O. N. Vohra did not appear at the hearing of the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the three Additional Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mittal must be deemed to have been appointed permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister must be held to be void. This writ petition was also heard along with the other writ petitions by this Bench of seven Judges. 6. Since these four writ petitions to which we have just referred raise the same issues in regard to the circular letter issued by the Law Minister and the scope and ambit of the power of the Central Government in regard to appointment or non-appointment of Additional Judges, it would be convenient to deal with them in a group and we shall hereafter for the sake of convenience refer to them as the first group of writ petitions. 7. The fifth writ petition is that filed by Miss Lily Thomas, an advocate practising in the Supreme Court. This writ petition has challenged the transfer of Mr. Justice M. M. Ismail, Chief Justice of the High Court of Madras as the Chief Justice of Kerala High Court. What occasioned the filing of this writ petition was an order dated January 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law, it may be entertained by the Court, because in any event, even if this writ petition were rejected on the ground that it was not maintainable under Article 32, a new writ petition for the same reliefs could always be filed under Article 226 and then it could be brought to this Court either by way of transfer under Article 139-A or by way of an appeal under Article 136. The Bench therefore decided to admit this writ petition and issued rule nisi. After this writ petition was admitted, there were several interlocutory proceedings taken out by the petitioner, but it is not necessary to refer to them since most of them were rejected. The Union of India filed a counter-affidavit in reply to this writ petition contesting the various grounds urged on behalf of the petitioner. Chief Justice M. M. Ismail who was impleaded as respondent 2 in this writ petition, also filed an affidavit but the stand he took was that he had decided not to challenge the legality or validity of the Order of the President transferring him as Chief Justice of the Kerala High Court and he did not want anyone to litigate for or against him. Since Chief Justice M. M. Ismail, who was the person to whom legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 222, clause (1) and the procedure prescribed by Article 217, clause (1) had no application in the case of transfer of a Judge or Chief Justice from one High Court to another. This writ petition was also referred to a Bench of seven Judges along with the fifth writ petition and that is how both these writ petitions have come up for hearing before us. 9. The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras High Court. This writ petition was originally field in the Madras High Court under Article 226 and along with the other writ petitions it was transferred to this court for hearing and final disposal. The averments and prayers made in this writ petition are substantially the same as those in the sixth writ petition filed by A. Rajappa and so also are the statements made in the counter-affidavit filed on behalf of the Union of India. This writ petition does not therefore need any separate or independent consideration. 10. The eighth writ petition is that filed by D. N. Pandey and Thakur Ramapati Sinha, two advocates practising in the High Court of Patna. This writ petition was originally filed in the High Court of Patna under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional validity of Orders of transfer of Chief Justice M. M. Ismail and Chief Justice K. B. N. Singh raised identical issues and we would therefore dispose them of together in one group. They may for the sake of convenience be referred as the second group of writ petitions. 12. We may also at this stage refer to S. L. P. No. 1509 of 1981, filed by Ripudaman Prasad Sinha in this Court. This petition for special leave is directed against an order passed by the High Court of Patna rejecting the writ petition of the petitioner challenging the constitutional validity of the Order of transfer of Chief Justice K. B. N. Singh, on the ground that the petitioner had not been able to produce the documents on which he wanted to place reliance. This is hardly a ground on which the writ petition should have been rejected by the High Court in limine and we would have therefore, ordinarily granted special leave to appeal against the decision of the High Court, but in view of the fact that the issues sought to be raised by the petitioner have already been agitated in the other writ petitions, it is not necessary to grant special leave and hence we do not propose to make any order on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition. This preliminary objection urged by Mr. Mridul raised a very interesting question of law relating to locus standi, or as the Americans call it 'standing', in the area so public law. This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy acessibility to justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes. 14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, there must be a corresponding duty owed by the other party to the applicant. This rule in regard to locus standi thus postulates a right-duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the courts over the years. 15. In the first place a ratepayer of a local authority is accorded standing to challenge an illegal action of the local authority. Thus, a ratepayer can question the action of the municipality in granting a cinema licence to a person, vide : K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi ). Similarly, the right of a ratepayer to challenge misuse of funds by a municipality has also been recognised by the courts vide : Varadarajan v. Salem Municipal Council : 1972 2 Mad LJ 485 : 85 Mad LW 705). The reason for this liberalisation of the rule in the case of a taxpayer of a municipality is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n receiving the report of a police officer or other information to make an order for remedying a public nuisance. What happened in this case was that the Ratlam Municipality failed to carry out its statutory duty of constructing a drain pipe to carry the filth etc. on a particular road. The local residents decided to invoke Section 133 of the Code of Criminal Procedure against the Municipality. The magistrate made an order requiring the Municipality to construct drain pipes and this order was confirmed in appeal by this Court. The municipality pleaded lack of funds but this was not accepted as a valid defence. However, to have a viable scheme keeping in view the financial position of the Municipality, this Court examined the three schemes submitted to it and directed the Municipality to implement one of them. The standing of the local residents to move the magistrate was recognised since Section 133 of the Code of Criminal Procedure expressly conferred such right on them. 16. There is also another exception which has been carved out of this strict rule of standing which requires that the applicant for judicial redress must have suffered a legal wrong or injury in order to entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning authority to do so, released the prisoner. But since a person detained would ordinarily be unable to communicate with outside world, the law presumes that he will not be able to approach the court and hence permits any other person to move the court for judicial redress by filing an application for a writ of habeas corpus. Similarly, where a transaction is entered into by the Board of Directors of a company which is illegal or ultra vires the company, but the majority of the shareholders are in favour of it and hence it is not possible for the company to sue for setting aside the transaction, any shareholder may file an action impugning the transaction. Here it is the company which suffers a legal wrong or a legal injury by reason of the illegal or ultra vires transaction impugned in the action, but an individual shareholder is permitted to sue of redressing such legal wrong or injury to the company, because otherwise the company being under the control of the majority shareholders would be without judicial redress, vide : Atwool v. Merryweather (1867 5 Equity 464, n; 37 LJ(Ch) 35 ). The Judicial Committee of the Privy Council also affirmed this exception to the strict rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea was that the defendant was not entitled to plead in defence the constitutional rights of non-Caucasians. But the Supreme Court of the United State negatived this argument observing : We are faced with a unique situation in which it is an action of the State court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Even in our own country we have recognised this departure from the strict rue of locus standi in cases where there has been a violation of the constitutional or legal rights of persons who by reason of their socially or economically disadvantaged position are unable to approach the court for judicial redress. We have in such cases permitted a member of the public to move the court of enforcement of the constitutional or legal rights of such persons and judicial redress for the legal wrong or legal injury caused to them. Take for example, the decision of this Court in Sunil Batra (II) v. Delhi Administration ) where this Court accepted the habeas corpus petition of a prisoner complaining of brutal assault by a head warden o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of person. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers engaged in road construction in the district of Ajmer, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public-spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of a third party, where there is an effective legal-aid organisation which can take care of such cases. 18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority ? Can any member of the public sue for judicial redress ? Or is the standing limited only to a certain class of persons ? Or is there no one who can complain and the public injury must go unredressed ? To answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress in relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treet and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law. 19. There is also another reason why the rule of locus standi need to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rights have ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today's setting unless accomp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be above to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual. 20. Now, as pointed out by Cappelletti in Volume III of his classic work on Access to Justice at page 520, The traditional doctrine of standing (legitimatio ad causam) attributes the right to sue either to the private individual who 'holds' the right which is in need of judicial protection or in case of public rights, to the State itself, which sues in courts through its organs. The principle underlying the traditional rule of standing is that only the holder of the right can sue and it is therefore, held in many jurisdictions that since the State representing the public is the holder of the public rights, it alone can sue for redress of public inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give standing to a member of the public would have to be determined by the occur in each individual case. It is not possible for the court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting 'sufficient interest'. It has necessarily to be left to the discretion of the court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective 'diffuse' rights and interests and imposing new public duties on the State and other public authorities, infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action. 21. It is interesting to note that the concept of public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. We need not make a detailed reference to all these cases but it will be sufficient if we refer to the McWhirter v Independent Broadcasting Authority [1973] 1 All E.R. 689 (CA)) and one of the three R. v Greater London Council Ex p. Blackburn [1976] 3 All E.R. 184 (CA)). The McWhirter v Independent Broadcasting Authority [1973] 1 All E.R. 689 (CA)) is reported in Attorney-General v. Independent Broadcasting Authority [1973] 1 All E.R. 689 (CA)). This was an action by McWhirter for injunction against the Broadcasting Authority which was threatening to show a film which did not comply with the statutory requirements and the showing of which would therefore be illegal. Lord Denning considered the question whether McWhirter had locus standi to bring the action when leave to bring a relator action was refused by the Attorney-General, and answering this question in the affirmative, he said : We live in an age when Parliament has placed statutory duties on government departments and public authorities - for the benefit of the public - but has provided no remedy for the breach of them. If a government department or a public authority transgresses the law laid down by Parliament, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s subjects, then anyone of those offended or injures can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate. The House of Lords, of course, in Gouriet v. Union of Post Office Workers [1977] 3 All E.R. 70 (HL)) took the view that the Attorney-General alone can sue for enforcing the observance of the law and if he refuses to give his consent to a relator action, such refusal was not reviewable by the courts and without such consent, a member of the public could not maintain his action. We do not think it necessary to examine this decision because it has no binding effect upon us. But we may point out that this decision had been severely criticised by jurists in England and elsewhere. It is clearly erroneous and shows the high watermark of abdication of judicial power which is likely to stultify the development of public law in the United Kingdom. There is however one distinguishing feature which we must point out, namely, that the action in that case was relator action and not an application for a writ. 23. We would therefore, hold that any member of the public having suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigate at considerable personal cost unless they have a real interest in a matter. We wholly endorse these remarks of the Australian Law Reforms Commission. We may add, with Justice Krishna Iyer (SCC p. 585) : In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi. It is also interesting to note that in India, as in other Commonwealth countries, the strict rule of standing does not apply to a writ of quo warranto or a ratepayer's action against a municipality, but there is no evidence that this has let loose the floodgates of litigation in these areas. The time, money and other inconveniences involved in litigating a case act as sufficient deterrents for most of us to take recourse to legal action, vide article of Dr. S. N. Jain on Standing and Public Interest Litigation. 24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or group of persons primarily injured, which they do not want. 26. If we apply these principles to determine the question of locus standi in the writ petition of Iqbal Chagla in which alone this question has been sharply raised, it will be obvious that the petitioners had clearly and indisputably locus standi to maintain their writ petition. The petitioners are lawyers practising the High Court of Bombay. The first petitioner is a member of the Bombay Bar Association, petitioners 2 and 3 are members of the Advocates Association of Western India and petitioner 4 is the President of the Incorporated Law Society. There can be no doubt that the petitioners have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, the petitioners would certainly be interested in challenging the constitutionality or legality of such action. The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di to maintain their writ petition. What we have said in relation to the writ petition of Iqbal Chagla and others must apply equally in relation to the writ petitions of S. P. Gupta and J. C. Kalra and others. So far as the writ petition of V. M. Tarkunde is concerned, Mr. Mridul, learned Advocate appearing on behalf of the Law Minister, did not contest the maintainability of that writ petition since S. N. Kumar to whom, according to the averments made in the writ petition, a specific legal injury was caused, appeared in the writ petition and claimed relief against the decision of the Central Government to discontinue him as an Additional Judge. We must, therefore, reject the preliminary objection raised by Mr. Mridul challenging the locus standi of the petitioners in the first group of writ petitions.Concept of Independence of the Judiciary 27. Having disposed of the preliminary objection in regard to locus standi of the petitioners, we may now proceed to consider the questions which arise for determination in these writ petitions. The questions are of great constitutional significance affecting the principle of independence of the judiciary which is a basic feature of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice, between chronic unequals. Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal-oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values. The necessity of a judiciary which is in tune with the social philosophy of the Constitution has nowhere been better emphasised than in the words of Justice Krishna Iyer which we quote : Appointment of Judges is a serious process where judicial expertise, legal learning, life's experience and high integrity are component, but above all are two indispensable - social philosophy in active unis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armory of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution-makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, ) . But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Additional Judges was 308 and 97 respectively while the aggregate actual strength was only 277 and 43 respectively. The figures given by the Union of India also show the large arrears pending in the different High Courts and it is clear from these figures that the total number of pending main cases has been steadily rising from 6,13,799 on December 31, 1978 to 6,78,951 on December 31, 1980. The average rate of disposal per Judge per year fixed at one of the Chief Justices' Conference was 650 but the figures produced by the Union of India show that the average rate of disposals of main cases per Judge per year during the years 1978-1979 and 1980 was higher namely, 860. It is obvious that even on the basis of the average rate of disposal per Judge per year being taken at the higher figure of 860; if no judicial reform is brought about and the present system continues as it is without any change, many more Judges would be required than the total sanctioned strength of permanent and Additional Judges in order to dispose of the pending cases which include not only main cases but also interlocutory and miscellaneous cases which do take the time of the Court. It was therefore cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate and the disposals of cases do not increase commensurately with the addition to the number of judge. Sometimes it is difficult to recruit competent judges and no useful purpose is served by appointing mediocre judges who ultimately would not be able to make any impact so far as the arrears of pending cases are concerned and who would dilute the quality of justice administered in the High Court. Then there are also problems of finding court rooms for the new judges who might be appointed because at most places the High Court buildings are heavily congested and there is hardly any space which can be spared. There may also be many other constraints operating with the Government of India which may dissuade it from taking a decision to increase the number of judges in a High Court. The Government of India may legitimately feel that increasing the number of judges in a particular High Court may not solve the problem of arrears of pending cases but that some other strategies may have to be adopted for that purpose, such as the setting up of administrative tribunals or reducing the number of appeals etc. There would therefore be many policy considerations which would influence the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government. It is not an unfettered power in the sense that the Central Government cannot act arbitrarily without consulting the constitutional functionaries specified in the two articles but it can act only after consulting them and the consultation must be full and effective consultation. 30. The question immediately arises what constitutes 'consultation' within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Fortunately, this question is no longer res integra and it stands concluded by the decision of this Court in Sankalchand Sheth case (Union of India v.Sankalchand Himmatlal Sheth, ). It is true that the question in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, related to the scope and meaning of 'consultation' in clause (1) of Article 222, but it was common ground between the parties that 'consultation' for the purpose of clause (2) of Article 124 and clause (1) of Article 217 has the same meaning and content as 'consultation' in clause (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision whether or not to appoint the person concerned as a Judge. But, while giving the fullest meaning and effect to 'consultation', it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Government and consultation cannot be equated with concurrence. We agree with what Krishna Iyer, J. said in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, that consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur (SCC p. 268). It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decisions is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionarie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of one over that of another. It is true that the Chief Justice of India is the head of the Indian Judiciary and may be figuratively described and paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary and it is not possible to say that so far as the consultative process is concerned, he is in any way less important than the Chief Justice of India. In fact, under the constitutional scheme, the Chief Justice of a High Court is not subject to the administrative superintendence of the Chief Justice of India nor is he under the control or supervision of the Chief Justice of India. It is only the power of hearing appeals against the decision of the Chief Justice of a High Court that is possessed by the Chief Justice of India and there, his superiority over the Chief Justice of the High Court ends. If we look at the raison d'etre of the provision for consultation enacted in clause (1) of Article 217, it will be obvious that the opinion given by the Chief Justice of the High Court must have at least equal weight as the opinion of the Chief Justice of India, because ordinarily the Chief Justice of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness 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 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, that is also a dangerous proposition. It is therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge. So also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is require to be consulted, but again it is not concurrence but o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue, social acceptability of the person concerned to the high judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system. These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a Judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive. But, as pointed out above, there is a fetter placed upon the power of appointment by the requirement of consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India in case of appointment of a High Court Judge and with the Chief Justice of India in case of appointment of a Supreme Court Judge. 31. However, at this stage, it is necessary to point out that so far as appointment of a Supreme Court Judge is concerned, it is not consultation with the Chief Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on -markers did not think it desirable that one person alone, howsoever high and eminent he may be, should have a predominant voice in the appointment of a Judge of the Supreme Court. But it seems that this requirement is not complied with in making appointments on the Supreme Court Bench presumably under a misconception that it is not a mandatory but only an optional provision. The result is that the Chief Justice of India alone is consulted in the matter of appointment of a Supreme Court Judge and largely as a result of a healthy practice followed thorough the years, the recommendation of the Chief Justice of India is ordinarily accepted by the Central Government, the consequence being that in a highly important matter like the appointment of a Supreme Court Judge, it is the decision of the Chief Justice of India which is ordinarily, for all practical purposes final. But, as it happens, there are no criteria laid down or evolved to guide the Chief Justice in this respect nor is there any consultation with wider interests. This is, to our mind, not a very satisfactory mode of appointment, because wisdom and experience demand that no power should be vested in a single individual ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that there should be a Judicial Commission for appointment of the higher judiciary. As recently as July 1977 the Chief Justice of Australia publicly stated that the time had come for such a commission to be appointed in Australia. So also in New Zealand, the Royal Commission on the Court chaired by Mr. Justice Beattle, who has now become the Governor-General of New Zealand, recommended that a Judicial Commission should consider all judicial appointments including appointments of High Court Judges. This is a matter which may well receive serious attention of the Government of India.The position of an Additional Judge : Article 224 32. We then turn to consider what is the position of an additional Judge under the Constitution. This question is of the greatest importance because as against a total sanctioned strength of 308 permanent Judges, there is a total sanctioned strength of as many as 97 additional Judges, which means that the total sanctioned strength of Additional Judges is almost one-third the total sanctioned strength of permanent Judges. There are a large number of additional Judges in various High Courts whose tenure is short and precarious and their fate should th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts Act or the Charter Act, 1861 for appointment of an Additional Judge with a restricted tenure in a High Court. It was for the first time in the Government of India Act, 1915 that a provision was enacted for appointment of Additional Judges. Sub-section (2) of Section 101 provided that each High Court shall consist of the Chief Justice and as many other Judges as His Majesty may think fit to appoint and clause (i) of the proviso to that sub-section authorised the Governor- General-in-Council to appoint persons to act as additional Judges of any High Court for such period not exceeding two years as may be required. The additional Judges were to have all the powers of a Judge of the High Court appointed by His Majesty. The Government of India Act, 1915 was replaced by the Government of India Act, 1935 and Section 220 of that Act provided that every High Court shall consist of a Chief Justice and such other Judges as His Majesty may from time to time deem it necessary to appoint and there was a proviso to this section which said that the Judges so appointed together with any Additional Judges appointed by the Governor-General shall at no time exceed in number such maximum number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition has been reproduced in the proposed Constitution. This prohibition, however, does not apply to acting Judges or temporary Judges. I think the rule in future should be that any barrister or advocate, who accepts a seat on the Bench, shall be prohibited from resuming practice anywhere on retirement. I would not, however, apply this to temporary Judges taken from the services who hold a seat on the Bench for a few months, but I would add that the practice of appointing additional and temporary Judges should be definitely given up. When I said at the Round Table Conference that there were acting, Additional and temporary Judges in India, some of the English lawyers not accustomed to Indian law felt rather surprised. I am also of the opinion that temporary or acting Judges do greater harm than permanent Judges, when after their seat on the Bench for a short period they revert to the Bar. A seat on the Bench gives them a pre-eminence over their colleagues and embarrasses the subordinate Judges who were at one time under their control and thus instead of their helping justice they act as a hindrance to free justice. I have a very strong feeling in this matter and have during my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or Additional Judge would necessarily be made permanent and he would not have to go back to the Bar. On the contrary, going back to the Bar was clearly contemplated and hence Article 198(2) and 199 were deleted. The Constitution-makers also thought that it would be possible to discontinue the system of appointing acting and Additional Judges altogether without any detriment to early disposal of cases, if the total number of permanent Judges was sufficiently increased. 36. But within six years of the coming into force of the Constitution it was found that the arrears in the High Courts were increasing and it was becoming difficult to bring them under control. There was Article 224 in the Constitution which provided that the Chief Justice of a High Court may at any time with the previous consent of the President request any retired Judge to sit and act as a Judge of the High Court, but this provision for recalling retired Judges to function on the Bench of a High Court for short periods was found to be neither adequate nor satisfactory and it was of no assistance in reducing the arrears of cases which were mounting up from year to year. Parliament in its constituent capacity, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to increase the number of the Judges of that Court for the time being. The power to appoint an Additional Judge cannot therefore be exercised by the President unless there is either temporary increase in the business of the High Court or there is accumulation of arrears of work in the High Court and even when one of these two conditions exists, it is necessary that the President must be further satisfied that it is necessary to make a temporary increase in the number of Judges of that High Court. The words for the time being clearly indicate that the increase in the number of judges which the President may make by appointing Additional Judges would be temporary with a view to dealing with the temporary increase in the business of the High Court or the arrears of work in the High Court. Article 224, clause (1) did not contemplate that the increase in the number of Judges should be for an indefinite duration. The object clearly was that Additional Judge should be appointed for a short period in order to dispose of the temporary increase in the business of the High Court and/or to clear off the arrears of pending cases. There is sufficient indication in clause (1) of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he normal strength of each Court has been brought up to the level required to cope with its normal institutions. We suggest that the required strength of the High Court of each State should be fixed in consultation with the Chief Justice of that State and the Chief Justice of India and the strength so fixed should be reviewed at an interval of two or three years. Such a review will be necessary not only by reason of changing conditions but because the implementation of our recommendations made elsewhere will lead to a quicker disposal of work in the subordinate courts which, in its turn, will result in an increase in the work of the High Courts. 57. We are of the view that the provisions of Article 224 of the Constitution should be availed of and Additional Judges be appointed for the specific purpose of dealing with these arrears. The number of such Additional Judges required for each High Court for the purpose of dealing with the arrears will have to be fixed in consultation with the Chief Justice of India and the Chief Justice of the State High Court after taking into consideration the arrears in the particular court, their nature and the average disposal of that Court. The n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y would have to go back. They would have no right to be appointed or even to be considered for appointment as permanent Judges, because when they accepted appointment as Additional Judges under clause (1) of Article 224, they would have known that they were appointed only as temporary Judges for a short period in order to clear off the arrears. 38. But what happened in practice was that the true intendment and purpose of clause (1) of Article 224 was never carried into effect. The Government did not increase the strength of permanent Judges in different High Courts adequately so as to be able to cope with the normal institutions. Though the Law Commission has recommended in its Fourteenth Report that the normal strength of a High Court must be fixed on the basis of average annual institution of all types of proceedings in the High Court during the last three years, this recommendation was not heeded with the result that even the current institutions in many of the High Courts could not be disposed of any the inadequate number of permanent Judges and they started adding to the existing arrears. Of course, it was not only the Government which was responsible for not increasing ade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod who would go back on the expiration of their term as soon as the arrears are cleared off, but as Judges whose tenure, though limited to a period not exceeding two years at the time of each appointment as an Additional Judges, would be renewed from time to time until a berth was found for them in the cadre of permanent Judges. By and large, every person entered the High Court judiciary as an Additional Judge in the clear expectation that as soon as a vacancy in the post of a permanent Judge became available to him in the High Court he would confirmed as a permanent Judge and if no such vacancy became available to him until the expiration of his term of office, he would be reappointed as an Additional Judge for a further term in the same High Court. Therefore, far from being aware that on the expiration of their term, they would have to go back because they were appointed only as temporary Judges for a short period in order to clear off the arrears - which would have been the position if clause (1) of Article 224 had been implemented according to its true intendment and purpose - the Additional Judges entered the High Court judiciary with a legitimate expectation that they would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply in relation to appointment of an Additional Judge and it would be open to the Central Government under Article 224, clause (1) to appoint an Additional Judge without consulting any of the constitutional functionaries specified in clause (1) of Article 217. This could never have been intended by the Constitution-makers, who made such elaborate provisions in the Constitution for safeguarding the independence of the judiciary. We must therefore, hold that no Additional Judge can be appointed without complying with the requirement of clause (1) of Article 217. 40. Now, when the term of an Additional Judge expires he ceases to be a Judge and therefore, if he is to continue as a Judge, he must be either reappointed as an Additional Judge or appointed as a permanent Judge. In either case, clause (1) of Article 217 would operate and no reappointment as an Additional Judge or appointment as a permanent Judge can be made without going through the procedure set out in Article 217, clause (1). Of course, an Additional Judge has a right to be considered for such reappointment or appointment, as the case may be, and the Central Government cannot be heard to say that the Additional Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Judge is not entitled as a matter of right to be appointed as an Additional Judge for a further term on the expiration of his original term or as a permanent Judge. The only right he has is to be considered for such appointment and this right also belongs to him not because clause (1) of Article 224 confers such right upon him, but because of the peculiar manner in which clause (1) of Article 224 has been operated all these years. 41. But the question then arises what are the factors which can legitimately be taken into account by the Central Government in deciding whether or not to reappoint an Additional Judge for a further term or to appoint him as a permanent Judge. The argument of the petitioners was that an Additional Judge is not on probation. He is as much a Judge as a permanent Judge with the same jurisdiction and the same powers and to treat him as if he were on probation would not only detract from his status and dignity but also affect his independence by making his continuance as a Judge dependent on the good opinion of the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India. We find it difficult to accept this argument i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government can, consistently with its constitutional obligation and in public interest, decide to reappointment him as an Additional Judge or appoint him as a permanent Judge. It is true that the fitness and suitability of the Additional Judge must have been considered by the Central Government at the time of his original appointment, but when the question again comes up for consideration on the expiration of his term, the Central Government has to consider afresh, in the light of the material then available, save and except material which was already with the Central Government at the time of the original appointment, as to whether he possesses the requisite fitness and suitability for being appointed as a Judge. It would not be right to say that merely because the fitness and suitability of the Additional Judge is required to be considered again for the purpose of dealing whether he should be reappointed for a further term or appointed as a permanent Judge, it would amount to treating him as if he were on probation. An additional Judge is certainly not on probation in the sense that his service cannot be terminated before the expiration of his term, unlike a probationer who can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent not to appoint him, because clause (1) of Article 217 prescribes the procedure to be followed only where an appointment is made and it has no application where an appointment is not made. This argument is, in our opinion, without force and must be rejected. An Additional Judge, as we have pointed out, has a right to be considered for appointment as an Additional Judge for a further term or in case there is a vacancy in a permanent post, then for appointment as a permanent Judge, and he must therefore, be considered by the Government for such reappointment or appointment as the case may be, and a decision must be taken in regard to him after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of Justice of India, and if it is found that there was no consultation with any of these three constitutional functionaries before the decision was taken by the Central Government not to appoint him or the decision of the Central Government is based on irrelevant grounds, it would not be consideration by the Central Government as required by clause (1) of Article 217 and he would, therefore, be entitled to challenge the decision of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rease the strength of permanent Judges because the arrears have come to stay and we do not think it is possible to wipe them out for a long period of time. We are glad that towards the close of the arguments Mr. Mridul submitted to us a statement on behalf of the Central Government assuring us that :The Union Government has decided to increase the number of posts of permanent Judges in the various High Courts keeping in view the load of work, the guide-lines prescribed and other relevant considerations. In fact in 1980 itself, on the basis of institution, disposal and arrears of cases and the guide-lines prescribed, the Governments of seven States where the problem was more acute, had been addressed to consider augmentation of the judge-strengths of their High Courts. It has been decided that where necessary the guide- lines prescribed will be suitably relaxed by taking into account local circumstances, the trend of litigation and any other special or relevant factors that may need consideration. The Union Government will take up the matter with the various State Governments so that after consulting the Chief Justices of the High Courts, they expeditiously send proposals for the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Union Government had decided that ordinarily further appointment of Additional Judge will not be made for a period of less than one year, but we cannot regard this statement as being fully in compliance with the constitutional requirement. The term for which an Additional Judge is appointed must not be less than two years, unless the temporary increase in business or the arrears of pending cases are so small that they can reasonably be disposed of within a shorter period, which, of course, today is only an idle dream in most of the High Courts. We may also point out that an Additional Judge cannot be appointed for a period of three months or six months in order to enable the Chief Justice of India or the Central Government to consider whether the Additional Judge should be appointed for a further term or as a permanent Judge. That is a matter on which the Chief Justice of India must come to his opinion well in time and the Government of India must also reach its decision sufficiently in advance so that the Additional Judge would know quite some time before his term is due to expire whether he is going to be appointed for a further term or is going to be discontinued. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age used in the order itself. This principle of interpretation is indisputably a valid principle and no exception can be taken against it, but we do not think it can have any application in the present case, because the circular letter addressed by the Law Minister is not in the nature of a public order made by a public authority. The Law Minister is undoubtedly a member of the Cabinet and it is reasonable to assume that in issuing the circular letter he was acting on behalf of the Central Government but the circular letter does not appear to have been issued by the Law Minister in the exercise of any constitutional or legal power. The circular letter has no constitutional or legal sanction behind it and non- compliance with the request contained in it would not proprio vigore entail any adverse consequence to the Additional Judge or to the person recommended for initial appointment, for not complying with such request. It may be that because an Additional Judge does not give his consent to be appointed as a permanent Judge in his own High Court and may not be appointed as a permanent Judge in his own High Court and may be discontinued as an Additional Judge on the expiration of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f every High Court should as far as possible be from outside the State in which that High Court is situated. The earliest point of time when this view was expressed by a high powered body was in the year 1955, when the States Reorganisation Commission in its report recommended that at least one-third of the number of Judges in the High Court of a State should consist of persons who are recruited from outside that State and this recommendation was guided by the consideration that the principal organs of State should be so constituted as to inspire confidence and to help in arresting parochial trends . Then the Law Commission in its Fourteenth Report presented in 1958 expressed the same view : The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these State. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one-third of the High Court Judges would be persons drawn from outside the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olitical party to which the Law Minister belongs was not in power, the Law Minister stated clearly and unequivocally that he agreed with the view expressed by the Law Commission that one-third of the Judges in each High Court must be from outside the State, because this would achieve better national integration in the field of judiciary. Whilst expressing this view, it is significant to note that the Law Minister made it clear that he would not support transfer of a High Court Judge if it is based on extraneous considerations . Then followed the Eightieth Report of the Law Commission presided over by Mr. Justice H. R. Khanna. This Report was submitted to the Government of India in August 1979 and in this Report, the Law Commission expressed its agreement with the recommendation made by the earlier Law Commission in its Fourteenth Report, namely, that there should be a convention according to which one-third of the Judges in each High Court should be from another State and added that this should normally be done through the process of initial appointments and not by transfers. The Law Commission gave the following reasons for taking this view :Evolving such a convention would, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that at least one- third of the new appointments should be from amongst persons from outside the particular States . The National Seminar on Judicial Appointments and Transfers convened by the Bar Council of India in Ahmedabad from October 17 to 19, 1980 also yielded the same consensus view, namely :The ideal of having one-third of High Court Judges from outside the State helps promotion of national integration and the preservation of a unified judicial system. However, it is desirable that this composition of the High Court should be accomplished by way of initial appointments rather than by transfers. Furthermore, in implementation of this formula care must be taken to preserve the legitimate representation of States and to maintain the sanctioned strength of teach State. It will thus be seen that, barring perhaps the Associations of Bombay Law- years, all high-powered bodies, forums and associations, which have anything to do with judicial system, have consistently over the years taken the view that one-third of the number of Judges in each High Court should be from outside the State. The unanimity of view has been so complete and over-whelming that it is impossible to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt Judges made during the emergency were sought to be defended by the Government of India on the plea of national integration and removal of narrow parochial tendencies, but this defence was found by the Court in Union of India v. Sankalchand Himatlal Sheth to be false. Chandrachud, J., as he then was, observed in his judgment in that case (SCC p. 224) : I would only like to add that the record of this case does not bear out the claim that any one of the 16 High Court Judges was transferred in order to further the cause of national integration. For form it. What was held by the Court was that the transfers of High Court Judges during the emergency were made not for the purpose of furthering the cause of national integration but by way of punishment. The Law Minister was therefore right in stating in the first paragraph of the circular letter that no start has been made in the past in the direction having one-third Judges in a High Court from outside the State and that is why he was taking the initiative in the matter. 48. Coming to the merits of the challenge against the validity of the circular letter, the principal contention advanced on behalf of the petitioners was that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Chief Minister of each State to make this inquiry. It is true that the Law Minister did not state in so many terms in the circular letter that the Chief Minister may make this inquiry through the Chief Justice of the high Court but that was clearly implicit in the circular letter, because a copy of the circular letter was also sent to the Chief Justice of each High Court with the endorsement for necessary action and moreover it must be presumed that the necessary inquiry would be made by the Chief Minister only through the Chief Justice of the High Court. The Chief Minister would not be expected to contact directly the Additional Judges or the persons recommended for initial appointment, for the purpose of ascertaining whether they are willing to be appointed as Judges in any other High Court. Since the Chief Justice of the High Court is the head of the judiciary in the State, the Chief Minister would invariably route his inquiry through the Chief Justice of the High Court and request the Chief Justice of the High Court to ascertain whether any of the Additional Judges or persons recommended for initial appointment are willing to be appointed to a High Court outside the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culty pointed out one behalf of the petitioners is more imaginary than real. The Chief Justice of the High Court where the appointment is proposed to be made need not blindly and unquestioningly accept the proposal made by the Law Minister. The Chief Justice of the High Court can make his own inquiries in regard to the suitability of the person proposed for appointment either through the Chief Justice of the High Court where such person is working as an Additional Judge or District Judge or practising as a lawyer or through other sources such as the Advocate General of that State. The Chief Justice of the High Court can also enquire from the Governor of the State where the person proposed to be appointed is working as an Additional Judge or District Judge or practising as a lawyer and find out what are his antecedents and whether he possesses character and integrity. The social philosophy of the person proposed to be appointed as also his attitudes and habits of mind can also be ascertained by the Chief Justice of the High Court by making inquiries from the Chief Justice of the High Court where such person is working as an Additional Judge or District Judge or practising as lawyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chief Justice of the High Court can ask the Central Government or the Chief Justice of India, whosoever has made the proposal, to place before him all the relevant material in regard to the person proposed to be appointed and also gather the necessary material form the Chief Justice of the other High Court as also from other sources available to him and then decide whether to recommend such person or not. So also the Governor of the State where the appointment is proposed to be made, can make the necessary inquiries and after considering all relevant material decide what attitude it should adopt in regard to the proposed appointment. The Chief Justice of India also would have a very important role to play in the process of consultation. Before giving his opinion in regard to the proposed appointment, the Chief Justice of India may enquire directly from the person proposed to be appointed whether he is really willing to be appointed as a Judge in another High Court and whether the consent given by him is genuine and free. The person proposed to be appointed may also pointed out to the Chief Justice of India his problems and difficulties in accepting appointment in the other High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not give their consent for being appointed as judges in another High Court, they would be visited with adverse consequences, can be built up. The word 'obtain' is a transitive verb and it is obvious that when the Chief Minister of each State was asked by Law Minister by issuing the circular letter to obtain the consent of the Additional Judges for being appointed as permanent judges in another High Court, what was meant was that the Chief Minister should obtain the consent of each Additional Judge if he was willing to give such consent. It is clear as a matter of plain grammar that one person can obtain something from another provided that other is willing to give it. The use of the word 'obtain' cannot possibly be construed to mean that the person from whom the consent is to be obtained must be coerced into giving it. To read the word 'obtain' in the circular letter as meaning that the Chief Minister was expected to coerce the Additional Judges into giving their consent or as conveying an implied threat to the Additional Judges that if they do not give their consent they might be dropped as Additional Judges on the expiration of their term, would, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expiration of his term would be decided in accordance with the procedure laid down in clause (1) of Article 217 and giving of consent would not be a factor tilting the balance in favour of the Additional Judge giving such consent. We are also not impressed by the argument urged on behalf of the petitioners that the omission to state in the circular letter that if an Additional Judge does not give his consent to be appointed in any other High Court, it would not be held against him in considering his appointment as a permanent Judge, conveyed an implied threat that failure to give such consent would be held against the Additional Judge and he might be discontinued as an Additional Judge on that account. It is difficult to spell out any such implied threat on a plain reading of the circular letter. On the contrary it is significant to note that the circular letter did not state, as it well might have, if such was the intention of the Law Minister, that if consent is not given by an Additional Judge for being appointed as a permanent Judge in another High Court, he would run the risk of being discontinued as an Additional Judge on the expiration of his term. It would be quite open t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a requirement for appointing a judge which is not prescribed by the Constitution and the obtaining of such consent would therefore be unconstitutional. It is, with the greater respect to the learned consul appearing on behalf of the petitioners, extremely difficult for us to appreciate this argument. When the name of a person is being considered for appointment as a judge because he is regarded as suitable for such appointment, we fail to see why he cannot be asked whether he is willing to be appointed as a judge in another High Court. It is for him to decide whether or not to give his consent for such appointment. He may very well say that he is not agreeable to be appointed as a judge in any High Court other than his own, but if, in the exercise of his own volition, he gives his consent for being appointed as a judge in another High Court, it is difficult to see how it can ever be contended that by obtaining such consent, an irrelevant qualification for appointment of a judge has been introduced. It is not as if a person who does not give his consent for being appointed as a judge in another High Court would necessarily be refused appointment in his own High Court. It is signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. His appointment as an Additional Judge of one High Court comes to an end and he is appointed afresh as an Additional or permanent Judge in another High Court. It is by virtue of a fresh appointment that he becomes a judge, whether additional or permanent, of another High Court and he is not transferred from one High Court to another within the meaning of clause (1) of Article 222. If the contention of the petitioners were correct, it would not be necessary, while appointing an Additional or permanent Judge in another High Court, to follow the procedure set out in clause (1) of Article 217 and to consult the Chief Justice of the latter High Court and the Governor of that State as required by that article and it would be possible to appoint such person as an Additional or permanent Judge in another High Court after consulting only the Chief Justice of India under clause (1) of Article 222. This proposition has only to be stated in order to be rejected; it would clearly amount to circumventing the provisions of clause (1) of Article 217. Take for example a case where a person who is an Additional Judge in a High Court for a period of two years is, on the expiration of his t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an extempore speech made on the floor of the House and not in a document or letter prepared after much care and deliberation. No undue reliance can therefore be placed on behalf of the petitioners on the use of the expression 'transfer' or 'transferred' in the speech of the Law Minister. Mr. Seervai also relied strongly on the circumstance that three associations of lawyers in Bombay had all taken the view that the circular letter contemplated transfer of Additional Judges and sought their consent to such transfer. But this circumstance has very little relevance in the interpretation of the circular letter for it is not for the lawyers practising in a particular High Court to construe the circular letter but is for this Court to determine what is the true meaning of that document. We are clearly of the view - in fact we find it impossible to take a different view - that what was contemplated by the circular letter was not transfer of Additional Judge from one High Court to another and it did not therefore, have to satisfy the requirements of clause (1) of Article 222. 54. But quite apart from this consideration, even if the view be taken that what the circular le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Minister in issuing the circular letter. The circular letter does not violate the provisions of clause (1) of Article 217 or clause (1) of Article 222 nor does it offend against any other constitutional or legal provision and the challenge against the validity of the circular letter must, therefore, fail. We may, however, while affirming the validity of the circular letter, make it clear that since an Additional Judge has a right to be considered for appointment as an Additional Judge for a further term on the expiration of his original term, and in case of a vacancy in a permanent post, for appointment as a permanent Judge in his own High Court, he cannot be discontinued as an Additional Judge on the ground that he has not given his consent for being appointed as a permanent Judge in any other High Court. Such a ground for discontinuing an Additional Judge would be a wholly irrelevant ground and if, on the expiration of his original term, an Additional Judge is discontinued on any such ground, the decision of the President discontinuing him would be unconstitutional and void and the Union of India would be liable to be directed to reconsider his case on the basis of relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Evidence Act since their disclosure would injure public interest. We propose to consider these rival arguments in the order in which we have set them out, first in regard to O. N. Vohra and then in regard to S. N. Kumar. 57. So far as O. N. Vohra is concerned, it it apparent that though he was joined as a party respondent to the writ petition filed by V. M. Tarkunde, he did not choose to appear and take part in the proceedings. He did not even file an appearance, presumably because he was not interested in wresting back the office of an Additional Judge through a judicial writ. He adopted a commendable attitude consistent with the dignity of the high office which he had the privilege to hold for over two years and scorned to be a party to any litigative adventure for getting back the office of a High Court Judge. He took the view that the office of a High Court Judge is no mean office for which one may canvas, lobby or fight but it is a high position which can only be offered and which one should regard as an honour to be invited to fill and if for any reason, justifiable or not, the Government chooses not to offer it to the deserving person, it may result in detrimen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should have been appointed as an Additional Judge for a further term. The Court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry - a knight errant roaming at will with a view to destroying evil wherever it is found. It was for this reason that we held that the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to non-appointment of O. N. Vohra was not relevant to the issues arising for determination in the writ petition and the Union of India could not be required to disclose it. 58. That takes us to the case of S. N. Kumar which stands on a tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to reject the claim for protection against disclosure and directed that these documents be disclosed by the Union of India. We now proceed to give our reasons for this decision taken by us by a majority of six against one. 59. The first ground on which protection against disclosure was claimed on behalf of the Union of India and the Law Minister was based on Article 74, clause (2) of the Constitution. It is clear from the constitutional scheme that under our Constitution the President is a constitutional Head and is bound to act on the aid and advice of the Council of Ministers. This was the position even before the amendment of clause (1) of Article 74 by the Constitution (42nd Amendment) Act, 1976, but the position has been made absolutely explicit by the amendment and Article 74, clause (1) as amended now reads as under : There shall be a Council of Ministers with the Prima Minister at the Head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. What was judicially interpreted even under the unamended Article 74, clause (1) has now been given Parliamentary recognition by the constitutional amendment. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment is inclined to take into account for reaching a particular decision have therefore necessarily to be communicated to the Chief Justice of the High Court, the State Government and the Chief Justice of India and in the circumstances, it should ordinarily be possible for the Court to gather from such communication, the reasons which have persuaded the Central Government to take its decision. Of course there may be cases where there are several reasons discussed between the Central Government and the three constitutional authorities and some of these reasons may be relevant, while some others may be irrelevant and without inquiring into the advice given by the Council of Ministers to President, it may not be possible to determine as to what are the reasons, relevant or irrelevant, which have weighed with the Central Government in taking its decision and in such a case, the Court may not be able to pronounce whether the decision of the Central Government is based on irrelevant grounds. But ordinarily the correspondence exchanged between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India would throw light on the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to resolve such dispute and an ugly situation should not arise where the word of one constitutional authority should be pitted against the word of another and the Court should be called upon to decide which of them is telling the truth. Oral talk or discussion may certainly take place between the Central Government and any other constitutional authority required to be consulted but it must be recorded immediately either in a note or in correspondence. Besides eliminating future dispute or controversy, the practice of having written communication or record of oral discussion ensures greater care and deliberation in expression of views and considerably reduces the possibility of improper or unjustified recommendations or unholy confabulations or conspiracies which might be hidden under the veil of secrecy if there were no written record. Moreover, such a practice would tend to promote openness in society which is the hallmark of a democratic polity. It would indeed be highly regrettable if, instead of following this healthy practice of having a written record of consultation, the Central Government or the State Government or the Chief Justice of the High Court or the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President to appoint or not to appoint an Additional Judge is so integrally connected with the constitutional requirement of full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India that at no stage can it be delinked from the views expressed by them on consultation and it would not be possible for the President to exercise this executive power in accordance with the Constitution unless the views of the two Chief Justices are placed before him. On the basis of this reasoning and as a logical consequence of it, argued the learned Solicitor-General, the views of the Chief Justice of Delhi and the Chief Justice of India obtained on consultation must be regarded as forming part of the advice tendered by the Council of Ministers to the President. The learned Solicitor-General sought to draw support for his argument from the decision of a Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev . We shall presently refer to this decision but before we do so, let us examine the argument of the learned Solicitor-General on principle. 61. There can be no doubt that the advice tendered by the Council of Ministers to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly be held to be outside the exclusionary rule enacted in clause (2) of Article 74. 62. We may now refer to the decision of the Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev Singh on which the greatest reliance was placed by the learned Solicitor-General in support of his plea based on clause (2) of Article 74. The respondent who was the District and Sessions Judge in the erstwhile State of Pepsu was removed from service by an order dated April 7, 1953 passed by the President who was then incharge of the Administration of the State. The respondent made a representation against the order of removal which was considered by the Council of Ministers of the State as in the meantime the President's rule had come to and end and the Council of Ministers expressed its views in a Resolution passed on September 28, 1955. But before taking any action it invited the Report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of clause (3) of Article 163. The learned Judge has merely set out his ipse dixit, without any reasons at all, saying in just one sentence : The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers. It is elementary that what is binding on the court in a subsequent case is not the conclusion arrived at in a previous decision but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion. Secondly, we may point out that we find it difficult to accept the view taken by the majority in this case. We are unable to appreciate how the report of the Public Service Commission which merely formed the material on the basis of which the Council of Ministers came to its decision as recorded in the proceedings dated August 11, 1956 could be said to form part of the advice tendered by the Council of Ministers to the Rajpramukh. We do not think the learned Solicitor-General can invoke the aid of this decision in support of his claim for protection under clause (2) of Article 74. 63. That takes us to the next question whether the correspondence exchanged between the Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 123 is a statutory provision of old vintage or that it has been interpreted in a particular manner some two decades ago. It is not as if it has once spoken and then turned into muted silence. It is an instrument which can speak again and in a different voice in the content of a different milieu. Let us therefore try to understand what voice this statutory provision speaks today in a democratic society wedded to the basic values enshrined in the Constitution. 64. Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of government. It is only if people know how government is functioning that they can fulfil the role which democracy assigns to them and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to the public, there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and powerful safeguard against political and administrative aberration and inefficiency. 67. The Franks Committee of the United Kingdom also observed to the same effect while pleading for an open government. It said in its report at page 12 : A totalitarian Government finds it easy to maintain secrecy. It does not come into the open until it chooses to declare its settled intentions and demand support for them. A democratic Government, however, though it must compete with these other types of organisations, has a task which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 96 : Administrative India puts the greatest weight on keeping happening within its corridors secret, thereby denying the citizens access to information about them. Such orientations produce deep contradictions in the large sociopolitical system of the land which itself is in a state requiring nourishment and care. As the latter is still relatively new and in its infancy, its growth processes inevitably get retarded for want of information about the government, which means from the government. Overconcealment of governmental information creates a communication gap between the governors and the governed, and its persistence beyond a point is apt to create an alienated citizenry. This makes democracy itself weak and insecure. Besides, secrecy renders administrative accountability unenforceable in an effective way and thus induces administrative behaviour which is apt to degenerate into arbitrariness and absolutism. This is not all.The government, today, is called upon to make policies on an ever-increasing range of subjects, and many of these policies must necessarily impinge on the lives of the citizens. It may sometimes happen that the data made available to the policy make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to enable it to determine on its admissibility. Translation of documents. - If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such directions, he shall be held to have committed an offence under Section 166 of the Indian Penal Code, 1860 (45 of 1860). These two sections came up for consideration for the first time before this Court in State of Punjab v. Sodhi Sukhdev Singh . Gajendragadkar, J. (as he then was), speaking on behalf of himself, Sinha, C.J. and Wanchoo, J. pointed out that the principle behind the exclusionary rule enacted in Section 123 is that a document should not be allowed to be produced in court if such production would cause injury to public interest and where a conflict arises between public interest in non-disclosure and private interest in disclosure, the latter must yield to the former. The learned Judge emphasized that though Section 123 does not expressly refer to injury to public interest, that principle is obviously implicit in it and indeed it is the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second view is that documents relating to affairs of State should be confined only to the class of noxious documents and when a question arises, it is for the court to determine the character of the document and if necessary, to enquire whether its disclosure would lead to injury to public interest. The third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the class, it may leave it to the head of the department to decide whether its production should be permitted or not, for it is not the policy of Section 123 that in the case of every noxious document, the head of the department must always withhold permission. The learned Judge then proceeded to consider which of the three views represents the correct legal position and for that purpose, turned to examine Section 162 and after discussing the true import of that section and holding that where an objection to the disclosure of a document is raised under Section 123 on the ground that it relates to affairs of State, the court cannot inspect the document for the purpose of deciding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f documents which are of such a character that even without inspecting them or conducting an enquiry, it might be possible to say that by virtue of their character, their disclosure would be injurious to public interest and therefore they are documents relating to affairs of State. But, there might be other documents which do not fall within this description and yet whose disclosure might be injurious to public interest and in case of such documents, it would not be possible for the court without inspecting them or any rate without holding an enquiry, to determine whether their disclosure would be injurious to public interest and they should therefore be classified as documents relating to affairs of State. Even so, according to Gajendragadkar, J. and the other learned Judges, the court can and must determine whether such documents relate to affairs of State without inspecting them and without even holding an enquiry into the possible injury to public interest which might result from their disclosure. The view taken by Gajendragadkar, J. and the other learned Judges in Sodhi Sukhdev Singh case thus runs into an inconsistency and creates an illogical situation. 69. There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would be futile to leave it to the head of the department to decide whether he should permit its production or not. We are therefore unable to accept the decision in Sodhi Singh case as laying down the correct law on this point. The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document. The basic question to which the court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India is that these documents are entitle to immunity from disclosure because they belong to a class of documents which it would be against national interest or the interest of the judiciary to disclose. It is settled law, and it was so clearly recognised in Raj Narain case that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure. The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class included cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 979, 987, 993 : [1968] 1 All E.R. 874 (HL)) Lord Reid dismissed the candour argument summarily at page 952 and Lord Upjohn pointed out at page 993 that immunity of this class of documents against disclosure has nothing whatever to do with candour or uninhibited freedom of expression , for it is not possible to believe that any minister or any high level military or civil servant would feel in the least degree inhibited in expressing his honest views in the course of his duty on some subject, such as even the personal qualifications and delinquencies, of some colleague, by the thought that his observation might one day see the light of day. Lord Morris of Borth-Y-Gest also said in the same case at page 957 : In many decided cases, however, there have been references to a suggestion that, if there were knowledge that certain documents (e.g. reports) might in some circumstances be seen by eyes for which they were never intended, the result would be that in the making of similar documents in the future candour would be lacking. Here is a suggestion of doubtful validity. Would the knowledge that there was a remote chance of possible enforced production really affect candour ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank and candid if these concerned believe that they are protected from disclosure because not all Crown servants can be expected to be made of sterner stuff . The need for candour and frankness must therefor certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide : the observations of Lord Denning in Neilson v. Lougharne [1981] 1 All E.R. 829, 835). 72. There was also one other reason suggested by Lord Reid in Conway v. Rimmer [1968] A.C. 910, 952, 973, 979, 987, 993 : [1968] 1 All E.R. 874 (HL)) for according protection against disclosure to documents belonging to this case : To my mind , said the learned Law Lord : the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner working of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. But this reason does not commend itself to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the State in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved.The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct words since they admirably express our own approach to the subject :But is the secrecy of the 'inner workings of the government machine' so vital a public interest that it must prevail over even the most imperative demands of justice ? If the contents of a document concern the national safety, affect diplomatic relations or relate to some State secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret government that it must be protected even at the price of injustice in our courts ? The reasons given for protecting the secrecy of government at the level of policy-making are two. The first is the need for candour in the advice offered to Ministers; the second is that disclosure 'would create or fan ill-informed or captious public or political criticism'. Lord Reid in Conway v. Rimmer [1968] A.C. 910, 952, 973, 979, 987, 993 : [1968] 1 All E.R. 874 (HL)) thought the second 'the most important reason'. Indeed, he was inclined to discount the candour argument. I think both reasons are factors legitimately to be put into the balance which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed merely to that class of documents in respect of which non-disclosure is really necessary for the proper functioning of the public service, though mostly it is in respect of documents falling within this class that the claim for class immunity is usually made. There is also another class of documents which has always been recognised by the Court as entitled to the same immunity and that class consists of documents evidencing the sources from which the police obtain information. Now we agree with the learned counsel on behalf of the petitioners that this immunity should not be lightly extended to any other class of documents, but, at the same time, boundaries cannot be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune form disclosure. If a new class comes into existence to which this principle applies, then that class would enjoy the same immunity. This is the basis on which in Reg v. Lewes Justices, ex parte Home Secretary [1973] A.C. 388, 412 : [1972] 2 All E.R. 1057(HL) (cited therein as Rogers v. Secretary of State for the Home Department, Gaming Board for Great Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice of India in regard to appointment or non-appointment of a High Court or Supreme Court Judge. 75. Now we may conveniently at this stage consider the question as to how a claim for immunity against disclosure should be raised under Section 123. It is necessary to repeat and re-emphasize that this claim of immunity can be justified made only, it is felt that the disclosure of the document would be injurious to public interest. Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the Press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation - whether its disclosure would hurt the State in its defence - should have no relevance in making a claim for immunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires that the document shall not be produced. Lord Simon of Glaisdale also pointed out in the same case : Crown privilege is a misnomer and apt to be misleading. It refers to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public interest. . . it is not a privilege which may be waived by the Crown or by anyone else . It is therefore clear that if a document is entitled to immunity against disclosure, it cannot be adduced in evidence by either party and even if neither of the parties claims such immunity, the Judge himself must take the objection, for the rule that the public interest must not be put in jeopardy by the disclosure of a document which would injure it, is one upon which the court should, if necessary, insist, even though no objection has been taken by any party or by any Government department. In Conway v. Rimmer [1968] A.C. 910, 952, 973, 979, 987, 993 : [1968] 1 All E.R. 874 (HL)) Lord Reid said that it is the duty of the Court to prevent the disclosure of a document without the intervention of any minister, if possible serious injury to the national interest is readily apparent . In Reg v. Lewes Justices, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led this objection, because, as would be clear from what we have discussed above, even if no affidavit were filed earlier on behalf of the Union of India claiming immunity against disclosure, the Union of India could always file an affidavit claiming such immunity at any stage before the claim for immunity was considered and decided by the court and once the claim for immunity was raised, the court could also on its own direct the Union of India to file a proper affidavit, if no such affidavit were already filed. We therefore took the affidavit of T. N. Chaturvedi on file and allowed the Union of India to rely upon it. We may point out that even if this affidavit had not been filed, the Court would still have had to consider on the basis of the other material before it including the nature of the correspondence whether its disclosure would be injurious to public interest and hence it should not be allowed to be disclosed. 77. We may also point out that we were invited to inspect for ourselves the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India for the purpose of deciding whether that correspondence was entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disclosure of the Blue Book under Section 123 that If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court and if the Court in spite of the affidavit wishes to inspect the document, the Court may do so (SCC p. 443). Mathew, J. also pointed out that in Amar Chand Butail v. Union of India 1964 AIR(SC) 1658 : 1965 (1) SCJ 243), this Court inspected the document in order to see whether it related to affairs of State. There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under Section 123, the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought. Since, in the present case, the affidavit of T. N. Chaturvedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice in a case of the greatest importance. the court would of course consider the affidavit made by the minister or the secretary and give it due weight and importance, but ultimately it is the court which will have to determine which aspect of public interest must prevail and whether the claim for immunity against disclosure should be upheld or not. This was most felicitously expressed by Lord Radcliffe in the Scottish appeal of Glasgow Corporation v. Central Land Board (1956 SC 1 (HL), 20 : 1956 SLT 41) where the learned Law Lord said :The power reserved to the court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government, for which the minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the document, because, as observed by Lord Simon of Glaisdale in D v. National Society for the Prevention of Cruelty to Children [1977] 2 W.L.R. 207 : [1978] A.C. 171(HL)), the public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest which might be injured by the disclosure of the document. Lord Keith also emphasized the necessity of taking the particular nature of the proceeding into account in the balancing process, when he said in Glasgow Corporation v. Central Land Board (1956 SC 1 (HL), 20 : 1956 SLT 41) that everything must depend on the particular circumstances of the case. It is impossible to lay down broad and general rules. So also in Sankey v. Whitlam (1978 21 Australian LR 505 : 53 ALJR 11) the High Court of Australia pointed out that the character of the proceeding in which the claim for immunity against disclosure is raised and the importance of the document in the determination of the issues arising in the proceeding are of extreme relevance in deciding which way the balance of public interest lies. There, the question was whether in a proceeding alleging offences against Mr. Whitlam, a for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be shown before the privilege should be accorded.The nature of the proceeding in which the claim for immunity arose was regarded as an important factor influencing the decision of the court in rejecting the claim and ordering production of the documents. It would thus seem clear that in the weighing process which the court has to perform in order to decide which of the two aspects of public interest should be given predominance, the character of the proceeding, the issues arising in it and the likely effect of the documents on the determination of the issues must form vital considerations, for they would affect the relative weight to be given to each of the respective aspects of public interest when placed in the scales. 80. Bearing these observations in mind, we must now proceed to examine the claim for immunity against disclosure in respect of the correspondence between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India in regard to non-appointment of S. N. Kumar. It was a class immunity which was claimed in respect of this correspondence and the protected class was said to consist of correspondence between the Law Minister or other high le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitant right of the citizen to know what is happening in the government, the court should be reluctant to expand the classes of documents to which immunity may be granted. The court must on the contrary move in the direction of attenuating the protected class or classes of documents, because by and large secrecy is the badge of an authoritarian government. We may point out once again, though it be at the cost of repetition, that even in regard to documents belonging to the class which has been judicially recognised as entitled to immunity, the law must now be taken to be well settled that the immunity is not absolute. The public interest in non-disclosure of a document belonging to this class may in an appropriate case yield to the public interest that in the administration of justice, the court should have the fullest possible access to every relevant document and in that event, the document would be liable to be disclosed even though it belongs to the protected class. The executive cannot by merely invoking the scriptural formula of class immunity defeat the cause of justice by withholding a document which is essential to do justice between the parties, for otherwise the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding. The constitutional functionaries concerned in this exercise are holders of high constitutional offices such as the Chief Justice of a High Court and the Chief Justice of India and it would not be fair to them to say that they are made of such weak stuff that they would hesitate to express their views with complete candour and frankness if they apprehend subsequent disclosure. We have no doubt that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would not be deterred from performing their constitutional duty of expressing their views boldly and fearlessly even if they were told that the correspondence containing their views might subsequently be disclosed. If, to quote the words of Lord Pearce in Conway v. Rimmer [1968] A.C. 910, 952, 973, 979, 987, 993 : [1968] 1 All E.R. 874 (HL)) there are countless teachers at schools and universities, countless employers of labour, who write candid reports, unworried by the outside chance of disclosure, there is no reason to suspect that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would flinch and falter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment of an Additional Judge for a further term is concerned, the only two grounds on which the decision not to appoint can be assailed are : firstly, that there was no full and effective consultation by the Central Government with the chief Justice of the High Court, the State Government and the Chief Justice of India before reaching the decision and secondly, that the decision is mala fide or based on irrelevant considerations. Now obviously these two grounds cannot be made good by a petitioner unless the correspondence between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant notings made by them are disclosed, for they alone would furnish the relevant evidence showing whether these two grounds are satisfied or not. These documents would show or at least shed light on the question whether there was full and effective consultation between the Central Government on the one hand and the Chief Justice of the High Court, the State Government and the Chief Justice of India on the other, because, as already pointed out by us, such consultation would ordinarily be in writing - as it ought to be - and they wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were complied with before the decision was taken not to continue the Additional Judge and whether any oblique motivations or irrelevant considerations influenced the Central Government in reaching that decision. The charge against the Central Government in the first group of present writ petitions was that there was no full and effective consultation with the Chief Justice of India before the decision was reached by the Central Government in regard to S. N. Kumar and in any event, the decision of the Central Government was actuated by oblique or improper motives. This was a serious charge against the Central Government and there can be no doubt that it would be very much in public interest that the necessary documents throwing light on the truth or otherwise of this charge should be disclosed, so that the full facts may be known to the public and the doubts raised and entertained about the influence of extraneous factors in the case of S. N. Kumar should be resolved and removed. It is significant to note that had there not been disclosure of these documents, a certain doubt or misgiving would have continued to prevail in the public mind that the decision to discontinue S. N. Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout public interest motivation, it would erode the independence of the judiciary which is a basic feature of the Constitution and therefore when such a charge is made, it is in public interest that it should be fully investigated and all relevant documents should be produced before the court so that the full facts may come before the people, who in a democracy are the ultimate arbiters. It would be plainly contrary to public interest to allow the inquiry into such a charge to be baulked or frustrated by a claim for immunity in respect of documents essential to the inquiry. It is also important to note that when the transfer of a High Court Judge or Chief Justice of a High Court is challenged, the burden of showing that there was full and effective consultation with the Chief Justice of India and the transfer was effected in public interest is on the Union of India and it cannot withhold the relevant documents in its possession on a plea of immunity and expect to discharge this burden by a mere statement in an affidavit. Besides, if the reason for excluding these documents is to safeguard the proper functioning of the higher organs of the State including the judiciary, then that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Justice of India, it would again create a piquant situation because it would affect the image of the Chief Justice of India in the public eyes. Moreover, a feeling might be created in the mind of the public that a person who was regarded as unsuitable for judicial appointment by one or the other of the two Chief Justices, has been appointed as a Judge and the litigants would be likely to have reservations about him and the confidence of the people in the administration of justice would be affected. The learned Solicitor-General contended that for these reasons it would be injurious to public interest to disclose the correspondence exchanged between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India. 85. We have given our most anxious thought to this argument urged by the learned Solicitor-General, but we do not think we can accept it. We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their differing views in regard to the suitability of an Additional Judge for further appointment are disclosed. We also find it difficult to agree that if the differing views of the two Chief Justices become known to the outside world, the public discussion and debate that might ensue might have the effect of lowering the dignity and prestige of one or the other of the two Chief Justices. When the differing views of the two Chief Justices are made public as a result of disclosure, there would certainly be public discussion and debate in regard to those views with some criticising one view and some criticising the other, but that cannot be helped in a democracy where the right of free speech and expression is a guaranteed right and if the views have been expressed by the two Chief Justices with proper care and deliberation and a full sense of responsibility in discharge of a constitutional duty, there is no reason why the two Chief Justices should worry about public criticism. We fail to see how such public criticism could have the effect of undermining the prestige and dignity of one or the other Chief Justice. So long as the two Chief Justices have acted honestly and bona fide wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointment and transfer of Judges should be regarded as so sacrosanct that no one should be able to pry into it and it should not be protected against disclosure at all events and in all circumstances. Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding. In fact, the possibility of subsequent disclosure would act as an effective check against carelessness, impetuosity, arbitrariness or mala fides on the part of the Central Government, the Chief Justice of the High Court and the Chief Justice of India and ensure bona fide and correct approach, objective and dispassionate consideration, mature thought and deliberation and proper application of mind on their part in discharging their constitutional duty in regard to appointments and transfers of Judges. It is true that if the views expressed by the Chief Justice of the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners and S. N. Kumar. Facts of S. N. Kumar's case : Whether full effective consultation 87. That takes us to the next question as to whether there was full and effective consultation between the President which means the Central Government on the one hand and the Chief Justice of India on the other. Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. We have already rejected the contention urged on behalf of the respondents that the requirement of consultation is necessary only where a person is being appointed a Judge of the High Court and not where a decision is taken not to appoint him. We have, of course, made it clear that where the name of a person is proposed for appointment as a Judge of the High Court for the first time, he, having no right to be considered for such appointment, is not entitled to insist that the proposal for his appointment, whether initiated by the Chief Justice of the High Court or the State Government or the Chief Justice of India, should be subjected to the process of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 is that the Central Government as well as each of the three constitutional functionaries required to be consulted must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision (supra para 30) and it is immaterial as to how such full and identical facts are conveyed by one authority to the other. It is sufficient compliance with the constitutional requirement of Article 217 if the selfsame facts on which the final decision is taken by the Central Government are placed before each of the three constitutional functionaries required to be consulted and their opinion is taken on the basis of such facts whatever be the manner in which those facts are brought to their notice. Let us examine whether in the present case this constitutional requirement was satisfied before the decision was taken by the Central Government not to appoint S. N. Kumar as an Additional Judge for a further term or to paraphrase it in the context of the controversy raised on behalf of the petitioners, whether the full and identical facts on which the decision was taken by the Central Government were placed before the Chief Justice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e more particularly when it is directed against persons holding high offices. Here it is difficult to see any justification at all for levelling a charge of conspiracy against the Chief Justice of Delhi and the Law Minister. The Chief Justice of Delhi was appointed acting Chief Justice on June 27, 1980 and he was confirmed as permanent Chief Justice with effect from January 8, 1981 and therefore on the date of the letter, his position as Chief Justice was not at all in jeopardy and he was not dependent on the Central Government or the Law Minister for his office. There were also no disputes or differences between the Chief Justice of Delhi and S. N. Kumar prior to the date of the letter and no suggestion has been made on behalf of S. N. Kumar that the Chief Justice of Delhi had any animus or prejudice against him. Nothing had transpired between the Chief Justice of Delhi and S. N. Kumar which might have induced the Chief Justice of Delhi to make a false allegation or imputation against him. Nor was any reason suggested as to why the Law Minister should have gone out of his way to see that S. N. Kumar was not continued as an Additional Judge. It would indeed be going too far to sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in taking the view that S. N. Kumar should not be recommended for continuance as an Additional Judge. While making his recommendation whether S. N. Kumar should be continued as an Additional Judge or not, the Chief Justice of Delhi had to consider the fitness and suitability of S. N. Kumar at the time and if there were complaints against S. N. Kumar, some of which he did not find to be without basis and doubts about the integrity of S. N. Kumar were expressed by responsible members of the Bar and some of his own colleagues, the Chief Justice of Delhi could not be said to have acted unreasonably in declining to recommend S. N. Kumar for an extension. It may be that on full and detailed investigation through an independent and efficient investigative machinery, the complaints and doubts against S. N. Kumar might have been found to be unjustified but such a course would have been neither practicable nor desirable. In the first place, as pointed by the Chief Justice of Delhi himself, he had no investigative machinery at his disposal and if he wanted the complaints and doubts against S. N. Kumar to be investigated, he would have had to ask the Central Government to carry out such invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vated or prejudiced, because the Additional Judge has offended some member of the Bar decided some case against a litigant. These occupational hazards which beset the life of an Additional Judge - in fact, even of a permanent Judge whether in the High Court or in the Supreme Court have unfortunately increased in recent times, because there has been a steady erosion of values and not only some interested politicians but also a few - and fortunately their tribe is still small - lawyers and members of the public are prone to make wild and reckless allegations against judges and impute motives for the decisions given by them. It is not realised by many that very often the judgments given by the High Courts and the Supreme Court are value judgments, because there are conflicting values competing for recognition by the judge and the choice made by the judge is largely dictated by his social philosophy and it is not possible to emphatically assert that a particular view taken by one judge is wrong and a different view taken by another judge is right. The nature of the judicial process being what it is, it is inevitable that the view taken by a judge, perfectly bona fide though it may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide wisely and with responsibility whether or not he should recommend the appointment of an Additional Judge for a further term. 89. Now where the Chief Justice of the High Court is reasonably satisfied after the greatest care and circumspection exercised by him as the holder of a high constitutional office to whom the Constitution has assigned an important function and in whom it has reposed a sacred trust, that the Additional Judge in regard to whose suitability he has to give opinion, does not enjoy good reputation for integrity, he obviously cannot recommend such Additional Judge for further appointment. It is possible that the Chief Justice of the High Court may go wrong in a given case and arrive at an erroneous opinion in regard to the suitability of an Additional Judge for appointment for a further term an that may result in injustice to the Additional Judge who may suffer by reason of such erroneous opinion but that cannot be helped because ultimately some constitutional functionary has go to be entrusted with the task of assessing the suitability of the person to be appointed an Additional Judge or a permanent Judge and no better person can be found for this purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appointment, he is not required to adjudicate upon various matters bearing upon his suitability and to come to a definitive finding or conclusion in regard to such matters. Where the complaint against an Additional Judge is in regard to his integrity, the Chief Justice of the High Court is not expected to hold a judicial or quasi-judicial inquiry for the purpose of adjudicating whether the Additional Judge is, in fact, lacking in honesty and integrity. Such an inquiry against a Judge whether Additional or permanent would not be permissible except in a proceeding for his removal. What the Chief Justice of the High Court has to do is merely to assess the suitability of the Additional Judge for further appointment and where lack of integrity is alleged against him, the assessment can only be on the basis of his reputation for integrity. The point we are making will become abundantly clear if we take the case of a member of the Bar or the seniormost District Judge who is for the first time considered for appointment as an Additional or permanent Judge. The integrity of the person under consideration would undoubtedly be a relevant factor to be taken into account, but in assessing su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e against S. N. Kumar were not without basis and doubts about the integrity of S. N.Kumar were expressed by responsible members of the Bar as also by some of his own colleagues, the Chief Justice of Delhi could not be said to be unjustified in writing the letter dated February 19, 1981 declining to recommend S. N. Kumar for appointment as an Additional Judge for a further term. We may once again repeat that this assessment of S. N. Kumar by the Chief Justice of Delhi may have been erroneous and, as we shall point out a little later, the Chief Justice of India took the view that it was erroneous, but on no account can lack of bona fides be attributed to the Chief Justice of Delhi. On the bona fide view taken by him, the Chief Justice of Delhi did what it was his plainest duty in the circumstances to do. 91. There was also one other argument urged on behalf of the petitioner which we might conveniently dispose of at this stage, since it is an argument closely allied to the one which we have just discussed and rejected. The petitioners contended that fair play and justice required that before an Additional Judge is dropped on the ground that he is lacking in integrity or that he do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India in recommending extension of the term of S. N. Kumar for six months was two- fold. In the first place, he felt that since he had recommended extension of the term of O. N. Vohra by six months and O. N. Vohra was senior to S. N. Kumar, the interests of propriety required that the term of S. N. Kumar should also be extended by six months and secondly, he desired to look carefully into the charges against S. N. Kumar before deciding whether to recommend his further appointment or not. Now having regard to the scope and purpose of Article 224 which we have discussed in some detail in an earlier portion of this judgment, it is clear that the Chief Justice of India misconceived the true legal position when he recommended extension of S. N. Kumar for a period of six months in order to enable him to look carefully into the charges against S. N. Kumar. We have already pointed out that on a true interpretation of Article 224 no short-term appointment of an Additional Judge can be made for the purpose of enabling the constitutional authorities to examine and decide whether the complaints or charges against the Additional Judge are justified or not, so that if the complaints or charges a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term of S. N. Kumar as an Additional Judge was expiring on June 6, 1981, he would be grateful if the Chief Justice of Delhi could send his comments so as to reach him latest by April 15, 1981. This communication addressed by the Law Minister to the Chief Justice of Delhi shows clearly beyond any doubt that the Law Minister was not party to any conspiracy for discontinuing S. N. Kumar as an Additional Judge. Since the Chief Justice of India had observed that the letter dated February 19, 1981 addressed by the Chief Justice of Delhi was too vague to form the basis of an opinion that S. N. Kumar was lacking in integrity, the Law Minister naturally asked the Chief Justice of Delhi to offer his further comments in answer to this remark of the Chief Justice of India. It appears that the Chief Justice of India also addressed a letter dated March 14, 1981 to the Chief Justice of Delhi asking him, with reference to the observations made by him in his letter dated February 19, 1981, to furnish details and concrete facts in regard to the allegations against Justice Kumar . The Chief Justice of Delhi thereupon met the Chief Justice of India and had discussion with him on March 26, 1981. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Minister : Perhaps you will consider this to be sufficient Comments on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter. Now it is clear from this letter addressed by the Chief Justice of Delhi to the Law Minister that the Chief Justice of India asked the Chief Justice of Delhi to furnish him details and concrete facts in regard to the allegations against Justice Kumar and in response to this request, the Chief Justice of Delhi met the Chief Justice of India on March 26, 1981 and discussed the entire matter in detail with the Chief Justice of India . Obviously all the details and concrete facts in regard to the allegations against S. N. Kumar which were required by the Chief Justice of India must have been discussed in detail between the Chief Justice of Delhi and the Chief Justice of India at this meeting held on March 26, 1981. There is no reason to believer that any facts which were in the possession of the Chief Justice of Delhi in regard to the complaints and doubts against S. N. Kumar were not disclosed and discussed by him with the Chief Justice of India. There is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he integrity of S. N. Kumar had been expressed by responsible members of the Bar as also by some of the Judges of the Delhi High Court and therefore the inference is irresistible that when the matter in regard to the complaints against the integrity of S. N. Kumar was discussed, these facts must have been disclosed by the Chief Justice of Delhi to the Chief Justice of India. The Chief Justice of India had with him a copy of the letter dated February 19, 1981 where reference was made to complaints against S. N. Kumar, said to have been received by the Chief Justice of Delhi and to doubts against the integrity of S. N. Kumar said to have been expressed by responsible members of the Bar and some of his own colleagues and it is impossible to believe that when the matter relating to the integrity of S. N. Kumar was discussed, the Chief Justice of India should not have asked the Chief Justice of Delhi to apprise him as to what were the complaints received against S. N. Kumar and who were the responsible members of the Bar and Judges who had expressed doubts against the integrity of S. N. Kumar. If the Chief Justice of Delhi refused to disclose these facts to the Chief Justice of India, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice of Delhi stuck to his opinion and that is why in the letter addressed by him to the Law Minister, he did not go back upon his refusal to recommend S. N. Kumar for further appointment and maintained his original recommendation not to continue S. N. Kumar for a further term. The Chief Justice of Delhi expressed the hope that what he had stated in his letter to the Chief Justice of India would be considered sufficient comments on his part in regard to the observations of the Chief Justice of India quoted in the letter of the Law Minister dated March 19, 1981. The criticism of the Chief Justice of India voiced in that letter was that what was stated by the Chief Justice of Delhi in his letter dated February 19, 1981 was vague and the Chief Justice of Delhi therefore pointed out to the Law Minister that he had discussed the entire matter in detail with the Chief Justice of India and met his objection and hence there was no question of any vagueness and he therefore hoped that his reply would be sufficient answer to the observations of the Chief Justice of India. The effect and substance of what the Chief Justice of Delhi stated in his letter to the Law Minister was that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnish him the material on which the opinion of the Chief Justice of Delhi was based. This letter addressed by the Law Minister to the Chief Justice of Delhi provides the clearest evidence that the Law Minister was not a party to any conspiracy to throw out S. N. Kumar as an Additional Judge. The Law Minister if he was a party to any such conspiracy, would not have required the Chief Justice of Delhi to provide the material which formed the basis of his opinion and instead, he would have accepted the opinion of the Chief Justice of Delhi and after formally inviting the opinion of the Chief Justice of India, decided to discontinue S. N. Kumar. But, obviously, the Law Minister wanted to satisfy himself that there was material on the basis of which it could be said that the integrity of S. N. Kumar was doubtful, and that is why he did not regard it as sufficient that the Chief Justice of Delhi had discussed the matter with the Chief Justice of India but asked for the material which formed the basis of the opinion of the Chief Justice of Delhi so that the Central Government could come to its own decision whether or not to continue S. N. Kumar as an Additional Judge. This action on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the basis for him to conclude that the integrity of S. N. Kumar was not above-board, he was proceeding to give some facts. It is clear from this prefatory statement that it was as per the desire of the Chief Justice of India that the letter dated March 28, 1981 was addressed by the Chief Justice of Delhi in the terms in which he did. There is an undercurrent of suggestion here that the Chief Justice of India did not approve of the idea of the Chief Justice of Delhi setting out in a letter the facts discussed by him with the Chief Justice of India and perhaps that is why the Chief Justice of Delhi stated that it was both embarrassing and painful for him to write that letter setting out the facts on which his opinion was based. The Chief Justice of Delhi then proceeded to state the facts on the basis of which he had formed the view that S. N. Kumar did not enjoy good reputation for integrity. It is not necessary for us to refer to these facts in any detail but suffice it to state that several facts were set out by the Chief Justice of Delhi which made him conclude that the reputation for integrity of Justice Kumar was not as should be for a Judge of the High Court . The Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel appearing on behalf of S. N. Kumar that these facts were not true and the Chief Justice of Delhi was not justified in reaching an adverse opinion against S. N. Kumar on the basis of these facts. The learned counsel for S. N. Kumar submitted that it was a well-established practice of the Delhi High Court that a part-heard matter always went with the Judge and was heard by him whether he was transferred from the original side to the appellate side or vice-versa and S. N. Kumar did not therefore act improperly in taking up part-heard matters even after he was transferred to the appellate side and no inference of lack of integrity could therefore be drawn against him merely because he continued to take up the part-heard matters. We are afraid this argument which seeks to assail the credibility of the opinion expressed by the Chief Justice of Delhi cannot be entertained by us. It is not open to the Court to hold an inquiry and determine for itself the correctness of the opinion of any of the constitutional authorities required to be consulted by the President. The opinion given by any such constitutional authority may be mistaken or erroneous but the corrective for such m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerable amount of time had already been spent. In fact, suits Nos. 1408, 1409 and 1417 of 1979 were not at all part-heard suits and much less could it be said that a considerable time had already been spent by S. N. Kumar on them and yet, according to the Chief Justice of Delhi, they continued to be dealt by S. N. Kumar. But, as we observed a little while ago, this is not a matter which can be investigated by the court and it must be left to the President, that is, the Central Government to decide what credibility or weight to attach to the opinion of the Chief Justice of Delhi. The court is concerned merely to enquire whether there was, in fact, full and effective consultation with the Chief Justice of Delhi and the Chief Justice of India and not whether the opinion given by the Chief Justice of Delhi or the Chief Justice or India was correct or not. It is possible that the opinion expressed by the Chief Justice of Delhi in the present case was mistaken or erroneous, but that is not an issue which can be examined by the court. The Chief Justice of Delhi bona fide came to the view that S. N. Kumar did not enjoy good reputation for integrity and he frankly expressed this view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of its judicial power, to comment on the judicial performance of O. N. Vohra and it was not for the Chief Justice of Delhi to sit in judgment over it for the purpose of condemning O. N. Vohra. 97. We may point out that the Chief Justice of Delhi also referred in his letter dated May 7, 1981 to the low disposals of S. N. Kumar as also to his unsatisfactory behaviour with the members of the Bar. But these allegations need not detain us because the discontinuance of S. N. Kumar as an Additional Judge by the President was not based on these allegations but it was founded only on the opinion expressed by the Chief Justice of Delhi in regard to the integrity of S. N. Kumar. 98. Now we come to a most important part of the controversy between the parties. The letter dated May 7, 1981 addressed by the Chief Justice of Delhi to the Law Minister carried at the top the remark, Secret (for personal attention only) . Now before this letter was sent by the Chief Justice of Delhi, to the Law Minister, he had informed the Law Minister to treat it as secret but at that time the Law Minister did not try to probe into the implications of this request. Later, however, when the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he had a meeting with the Chief Justice of Delhi on March 26, 1981 in that connection, he did not write to the Law Minister until the 3rd week of May 1981 giving his opinion in regard to the question whether S. N. Kumar should be continued or not. Meanwhile, the time fixed by this Court for the Union of India to decide whether S. N. Kumar should be reappointed for a further term as an Additional Judge or should be appointed as a permanent Judge or otherwise, was expiring on May 27, 1981 and the Law Minister was therefore constrained to address a letter dated May 21, 1981 reminding the Chief Justice of India that he had stated in his note dated March 3, 1981 that he desired to look carefully into the charges against S. N. Kumar and requesting him that if he had made any inquiries, the Law Minister would be grateful to have the details and also pressing him to give his urgent advice in regard to the continuance or otherwise of the term of S. N. Kumar. It appears that this letter was received by the Chief Justice of India when he was camping at Simla during the summer vacation and on receipt of this letter, the Chief Justice of India addressed a communication dated May 22, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the correspondence which had taken place between him, the Chief Justice of Delhi and the Chief Justice of India and pointing out that notwithstanding his specific request as to details of the inquiries made by him, the Chief Justice of India had not furnished the same to him and on the contrary the letter dated May 22, 1981 addressed by the Chief Justice of India revealed that he became a victim of his own charge of vagueness made by him against the Chief Justice of Delhi. The Law Minister stated in the note that he presumed that when the Chief Justice of Delhi and the Chief Justice of India met, the former must have informed the latter about the details that he had mentioned. . . in his letter dated May 7, 1981 and this inference was obvious from the letters addressed by the Chief Justice of Delhi to the Law Minister and the Chief Justice of India. the Law Minister observed that even according to the Chief Justice of India, the prevailing practice in the Delhi High Court was that not every part-heard case but only those part-heard cases on which substantial amount of time had already been spent would go with the Judge when there was change of allocating of work but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Additional Judge without consultation with the Chief Justice of Delhi and the Chief Justice of India as mandatorily required by Article 217. But as pointed out by us in an earlier portion of the judgment, it was not necessary that the full and identical facts which at once constituted both the source and foundation of the final decision of the Central Government should be placed before the Chief Justice of Delhi and the Chief Justice of India by the Central Government itself or that they should be brought to the notice of the Chief Justice of Delhi and the Chief Justice of India in any particular order or by following any particular procedure. What was necessary to constitute full and effective consultation within the meaning of Article 217 was that the Chief Justice of Delhi and the Chief Justice of India should have for their consideration full and identical facts which ultimately formed the basis of the decision of the Central Government. Now there can be no doubt that the decision of the Central Government not to appoint S. N. Kumar for a further term was based on the facts provided by the Chief Justice of Delhi in his letter dated May 7, 1981 and if these facts were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it shows clearly and indisputably that the facts set out in the letter dated May 7, 1981, were discussed by the Chief Justice of Delhi with the Chief Justice of India at the meeting held on March 26, 1981. The Chief Justice of Delhi pointed out that he did not want the letter dated May 7, 1981, to be brought to the attention of the Chief Justice of India because, as observed by him in the opening portion of the letter, he had discussed the details and concrete facts in regard to the allegation against Justice Kumar with Chief Justice of India but the letter dated March 28, 1981, was written by him in the terms in which it was couched as per the desire of the Chief Justice of India and therefore it was embarrassing and painful for him to write the letter dated May 7, 1981. This reason given by the Chief Justice of Delhi carries a veiled suggestion though not expressly articulated but implicit in what he has stated, that the Chief Justice of India did not want him to place on record the details and concrete facts in regard to the allegations against S. N. Kumar and that is why he wrote the letter dated March 28, 1981, in the terms he did according to the desire of the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he apprehension that if his letter dated May 7, 1981 was sent to the Chief Justice of India, its contents might in the process leak out and S. N. Kumar and others might come to know about them, but there is no reason to doubt that he bona fide felt this apprehension and that weighed with him by asking the Law Minister not to bring his letter dated May 7, 1981 to the attention of the Chief Justice of India particularly since he had already discussed the details and concrete facts set out in that letter with the Chief Justice of India. The third reason given by the Chief Justice of Delhi was that the Chief Justice of India had already started wrongfully denigrating him for his letter dated February 19, 1981 as intimated to him by his friends and that if the Chief Justice of India came to know that he had placed the detailed facts in regard to the allegations against S. N. Kumar on record contrary to his wish, the Chief Justice of India might feel offended and in the event his functioning as Chief Justice of Delhi would become difficult vis-a-vis the Chief Justice of India. This feeling voiced by the Chief Justice of Delhi might or might not be justified and the information received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the taking up of part-heard cases by S. N. Kumar after transfer to the appellate side and that was a fortiorari the only matter mentioned by the Chief Justice of India to S. N. Kumar when he called S. N. Kumar for discussion after his meeting with the Chief Justice of Delhi, it is difficult to understand how S. N. Kumar happened to refer to Suits Nos. 1408, 1409 and 1417 of 1979 in his counter-affidavit filed before the disclosure of the letter dated May 7, 1981. These three suits were not part-heard suits because the summonses for judgment in these three suits had been disposed of by S. N. Kumar on March 7, 1980 by granting unconditional leave to defend and yet they were specifically referred to by S. N. Kumar in his counter-affidavit and explanation was sought to be given in regard to them. These three suits were particularly mentioned in the letter dated May 7, 1981 and according to that letter, it was in relation to these suits that allegation of lack of integrity was made against S. N. Kumar. Now if the complaint against the integrity of S. N. Kumar in relation to these three suits was not mentioned by the Chief Justice of Delhi to the Chief Justice of India at the mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e occasions when persons holding high constitutional offices are called upon to perform an unpleasant duty and this duty they have to perform, whatever be the consequences. If necessary, let the heavens fall but what is right and just shall be done without fear or favour, affection or goodwill. Long years ago that great common law Judge, Lord Mansfield spoke of the judicial office in majestic tones and said :I will not do that which my conscience tells me is wrong, upon his occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the Press; I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow.... Once for all, let it be understood, that no endeavours of this kind will influence any man who at present sits here. What the learned Chief Justice said in regard to judicial function must apply with equal validity where a Judge is called upon to discharge any other function entrusted to him by the Constitution and he must boldly and fearlessly do that which Constitution commands. But merely because the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce before taking the decision not to continue him as an Additional Judge. This contention is without merit and premise on which it is based is not sustainable. It is wholly incorrect to say that when an Additional Judge whose term has expired and who would therefore have to return to the Bar or to the subordinate judicial service, is not appointed a permanent Judge or an Additional Judge for a further term, he is removed by the Central Government. We have already discussed this aspect of the matter and pointed out that on the expiration of his term, an Additional Judge has no right to be appointed a permanent Judge or an Additional Judge for a further terms and his only right is to be considered for such appointment and if as a result of such consideration, after going through the consultation process envisaged in Article 217, he is not considered suitable for further appointment and it is decided not to reappoint him, he cannot complain against the decision, unless he can show that there was no full and effective consultation as contemplated in Article 217 or that the decision not to appoint him was based on irrelevant considerations. If he is not appointed a permanent Judge or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving regard to the high status and dignity of a High Court Judge, the Union of India could see its way to place the letter dated May 7, 1981 addressed by the Chief Justice of Delhi to the Law Minister before the Chief Justice of India and elicit his opinion with reference to that letter and then consider whether S. N. Kumar should be reappointed as an Additional Judge in the Delhi High Court. This is only a suggestion which we are making ex cathedra for the acceptance of the Government; if thought fit.K. B. N. Singh's case 107. The second group of writ petitions raises the question of constitutional validity of the orders transferring Chief Justice M. M. Ismail to the Kerala High Court and Chief Justice K. B. N. Singh to the Madras High Court. However, so far as Chief Justice M. M. Ismail is concerned, the question has become academic because he has stated in the counter-affidavit filed by him in reply to the writ petition of Miss Lily Thomas that he does not want anyone to litigate for or against him nor does he want anything about him to be argued or debated and he has subsequently resigned his office as Chief Justice of the Madras High Court. The only question which there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (1) of Article 222, but the word 'transfer' which is used there is a neutral word which can mean consensual as well as compulsory transfer and if the high and noble purpose of the Constitution to secure the independence of superior judiciary by insulating it from all forms of executive control or interference is to be achieved, the words 'transfer' must be read in the limited sense of consensual transfer. I pointed that when a Judge is transferred to another High Court, he has to make and subscribe a fresh oath or affirmation before the Governor of the State to which he is transferred before he can enter upon the office of a Judge of that High Court and such transfer would not become effective unless the Judge makes and subscribes an oath or affirmation before the Governor and that would plainly be a matter within the volition of the Judge and I therefore, concluded that since the volition of the Judge who is transferred is essential for making the transfer effective, there can be no transfer of a Judge of a High Court without his consent. The view taken by Justice Untwalia and myself was thus a minority view, but since the present writ petitions were bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, that the power to transfer a Judge from one High Court to another can be exercised only in public interest and there must be full and effective consultation between the President, that is, the Central Government and the Chief Justice of India before the decision to transfer a Judge is taken. I wholly accept this construction of clause (1) of Article 222 and since full and detailed reasons have been given in the various judgments in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, I need not indulge in the same exercise again. 109. Now it is obvious that when a Judge is transferred from one High Court to another by way of punishment, it can never be in public interest for no public interest would countenance punishment of a Judge except by way of impeachment under proviso (b) to clause (1) of Article 217 read with clause (4) of Article 124. There is a clear antithesis between a transfer by way of punishment and a transfer in public interest and therefore, a transfer by way of punishment must be held to be outside the scope and ambit of article 222, clause (1). In fact, it was so held in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Shet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated to the conduct or behaviour of the Judge, the transfer would clearly be a penal transfer not in public interest and hence outside the scope and ambit of Article 222, clause (1). 110. That takes me to a consideration of the question whether in the present case there was full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K. B. N. Singh to the Madras High Court and whether such transfer was effected in public interest and not by way of punishment. While considering this question, I would like to emphasise at the outset, and the point I am making here is one of great importance, that when a transfer of a Judge of a High Court is challenged in a Court of Law, the burden must lie upon the Government to sustain the validity of the transfer. The power of transfer, even according to the majority decision in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth is a drastic power to be exercised only in rare cases as it has the effect of destroying the right of the Judge who is transferred, to continue as a Judge in the High court to which he was appointed until he reac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by filing an application for a writ of habeas corpus. This Court has consistently taken the view in such cases, unlike the House of Lords in Zamir case (Zamir v. Secretary of State for the Home Department, [1980] A.C. 930 (HL)), that the burden of sustaining the validity of the detention must lie on the detaining authority. 111. I may observe that this is a remarkably unusual case in which there is substantially a contest between the Chief Justice of a High Court on one hand and the Chief Justice of India on the other. The Government is, of course, a party to this contest since it is ultimately the order of transfer made by the Government which is called in question by Chef Justice K. B. N. Singh, but since the Order of transfer was made by the Government on the recommendation of the Chief Justice of India, it is the Chief Justice of India who has accepted the gauntlet and joined the contest against Chief Justice K. B. N. Singh. The Chief Justice of India has filed a counter-affidavit in reply to the writ petition of Chief Justice K. B. N. Singh and others, but having filed such counter-affidavit, he has chosen not to appear before us through counsel. The result is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause I agree with the judgment prepared by my learned brother D. A. Desai on this point. He has carefully analysed the correspondence as well as the affidavits and reached the conclusion that there was no full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K. B. N. Singh to the Madras High Court and the transfer was made by way of punishment and not in public interest. I wholly endorse this view taken by him as also the reasons given by him in support of that view, but having regard to the importance of the matter affecting as it does the fate of the Chief Justice of a High Court, I would add a few words in support of what my learned brother D. A. Desai has stated in his judgment. 113. So far as the first question is concerned whether there was full and effective consultation between the Central Government and the Chief Justice of India, I have already pointed out, while discussing the scope and effect of clause (1) of Article 217 as to what is the meaning and content of 'consultation'. It requires that the Central Government must make available to the Chief Justice of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out his proposed transfer to Rajasthan High Court and enquired from him whether he would have any particular problems or difficulties, if he was transferred to the Rajasthan High Court. But unfortunately, no such enquiry was made by the Chief Justice of India before he made his proposal for transfer of Chief Justice K. B. N. Singh to the Rajasthan High Court, which proposal might well have been accepted by the Central Government immediately, but for the fact that there was some difficulty in regard to another proposal simultaneously put forward by the Chief Justice of India for transfer of Chief Justice K. D. Sharma from the Rajasthan High Court to the Kerala High Court. The Chief Justice of India however, changed his proposal in regard to the transfer of Chief Justice K. B. N. Singh and asked the Central Government by his letter dated December 20, 1980 addressed to the Law Minister to transfer Chief Justice K. B. N. Singh to the Madras High Court. There was thus a change in the proposal for transfer of Chief Justice K. B. N. Singh within a period of less than 14 days. But even then, the Chief Justice of India did not inform Chief Justice K. B. N. Singh that he was being transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Chief Justice M. M. Ismail was proposed to be transferred to the Kerala High Court and that he may therefore have to go to the Madras High Court and enquired from him if he had anything to say on the question of his proposed transfer . Chief justice K. B. N. Singh thereupon enquired from the Chief Justice of India as to why he may be transferred to Madras on which, according to the counter-affidavit of the Chief Justice of India, he gave two reasons, one that it was Government policy and the other that it was proposed to transfer Chief Justice M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place. Chief Justice K. B. N. Singh, however, informed the Chief Justice of India that his mother was bedridden and was not in a position to go with him to Madras and that if his transfer was insisted upon, he would prefer to resign. The Chief Justice of India requested him not to act in haste and to give the matter a close thought. Chief Justice K. B. N. Singh thereafter met the Chief Justice of India in New Delhi in the evening of January 8, 1981 and discussed the question of his proposed transfer with him for some time. When Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inister or to the Prime Minister or to any other high level constitutional functionary of the Central Government. The only statement which we have on this point is the one made by the Chief Justice of India in his counter- affidavit, namely, that every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer . This statement, even if it be accepted as wholly correct, is, in my opinion, not sufficient to discharge the burden which lies upon the government to show that there was full and effective consultation. In the first place, it does not say who was the constitutional functionary on behalf of the President with whom every relevant aspect of that question was discussed . Did the Chief Justice of India discuss the matter with the President personally, though, of course, a statement was made to us on behalf of the President that he had no discussion with the Chief Justice of India in this respect or did he discuss with the Prime Minister or did he discuss with the Law Minister ? We are not informed as to who was the person with whom the discussion took place and unless the name of the person is mentioned, I do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly possible that some facts might have been discussed which the Chief Justice of India considered relevant but the Court might find them to be irrelevant. We are not told by the Chief Justice of India as to what were the facts discussed by him with the Central Government and in the absence of this information, it is not possible for us to conclude that there was full and effective consultation between the Chief Justice of India and the Central Government. 115. There is also another infirmity form which the process of consultation suffers. It was on January 8, 1981 that Chief Justice K. B. N. Singh discussed with the Chief Justice of India the difficulty arising from his mother's advanced age and illness and when the Chief Justice of India pointed out to him that his brother and other family members were there to look after his mother, he explained to the Chief Justice of India that his mother had a sentimental attachment to him and he could not leave her to the care of his brother or other members of the family. There is nothing to show that this particular difficulty of Chief Justice K. B. N. Singh was brought to the notice of the Central Government by the Chief Justice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mly opposed to that policy, but he recommended the transfer because he thought that for strictly objective reasons, it was necessary to transfer Chief Justice K. B. N. Singh. Then, how could the Chief Justice of India tell Chief Justice K. B. N. Singh that he was being transferred on account of Government policy. The second reason given by the Chief Justice of India is also a little intriguing. If Chief Justice K. B. N. Singh was proposed to be transferred to Madras because it was necessary to appoint an experienced and senior Chief Justice in place of Chief Justice M. M. Ismail, why, may I ask, was he proposed for transfer to the Rajasthan High Court ? This reason could not possibly apply to the proposed transfer to the Rajasthan High Court. There is no doubt that Chief Justice K. B. N. Singh was proposed to be transferred not because he was a senior and experienced Chief Justice who was required to man the High Court of Madras in place of Chief Justice M. M. Ismail but because the Chief Justice of India was of the view that he should be moved out of the Patna High Court. 117. Then, in the course of the discussion at the meeting which took place on January 8, 1981, the Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which prevailed with the Central Government was totally different from the reason which induced the Chief Justice of India to make his proposal for transfer and there is nothing to show that this reason which weighed with the Government of India was communicated to the Chief Justice of India for his opinion. There was therefore clearly no full and effective consultation even in regard to this aspect. Moreover this reason given by the Central Government for making the order of transfer clearly shows that the Central Government did not apply its mind to the question whether on the facts, it was necessary or expedient to transfer Chief Justice K. B. N. Singh, but accepted the recommendation of the Chief Justice of India, because it thought that if the recommendation of the Chief Justice of India was accepted and the transfers of Chief Justice M. M. Ismail and Chief Justice K. B. N. Singh were made, it would be easier for the Central Government thereafter to press for acceptance of the Government policy by the Chief Justice of India. There was in my opinion, clearly abdication of its constitutional function by the Central Government. The order of transfer of Chief Justice K. B. N. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On February 19, 1981, a few days before Shri Kumar's term of office was to expire, the Chief Justice of the Delhi High Court wrote to the Union Law Minister saying that it was his very painful duty not to recommend and extension for Justice Kumar as he has been receiving persistent and serious complaints against Shri Kumar. The Chief Justice of India to whom a copy of this letter was sent wanted to look carefully into the charges against Shri Kumar and accordingly advised extension of his term by a period of six months. Ultimately on the recommendation of the Law Minister Shri Kumar's tenure as Additional Judge of the Delhi High Court was extended by three months commencing from March 7, 1981; at the end of this period the Chief Justice of India took a different view from the Chief Justice of the High Court and in a letter to the Law Minister written on May 22, 1981 he said that he had made independent enquiries in regard to Justice Kumar's integrity and that not one member of the Bar or of the Bench doubted the integrity of Justice Kumar and that on the other hand, several of them stated that he is a man of unquestioned integrity . However, in a note recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly to introduce a measure of uniformity and to serve as a check on the number of such appointments because the appointment of Additional Judges was apparently considered as an exceptional measure to meet particular situation when Article 224 in its present form was introduced in the Constitution in 1956. As things stand at present, however, this seems to have become a regular feature as would appear from the chart supplied during the hearing of these petitions showing the number of permanent and Additional Judges in the different High Courts. There can be no dispute however that the continuance of an Additional Judge in office is conditional upon the continued existence of arrears in a High Court. Except that the tenure of an Additional Judge is limited depending on the arrears of work or the temporary increase in the business of a High Court, the position and powers of an Additional Judge and a permanent Judge are the same. Qualifications required of a person for appointment as a Judge of a High Court as stated in Article 217(2) are the same for both. Article 221(1) read with the Second Schedule which provides for the salaries payable to the Judges of the High Court makes no dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acceptable. The argument is that Article 224 only fixes an outer limit of time, and the President is therefore free to appoint Additional Judges for varying periods of time not exceeding two years - for three months or six months - as he pleases without reference to the volume of work pending in the High Court. Such a claim is untenable on the language of Article 224 and militates against the conception of independence of the judiciary. The independence of judiciary depends to a great extent on the security of tenure of the Judges. If the Judge's tenure is uncertain or precarious, it will be difficult for him to perform the duties of his office without fear or favour. On a proper reading of Article 224(1) it must be held that the tenure of an Additional Judge is not uncertain or precarious but it is conditional on the existence of arrears in the High Court which is an objective condition of fact. It was pointed out on behalf of the petitioners that the practice has always been to appoint an Additional Judge for further period on the expiry of his previous term if the pending work in the High Court required the services of an Additional Judge and to appoint the seniormost amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible alternative to what has been suggested above as the proper course to follow. In the case of Shri Kumar, admittedly there has been no real investigation into the complaints against him. Possibly conscious of this position the Chief Justice of the Delhi High Court in a letter to the Law Minister written on May 7, 1981 said : To my mind, the reputation of integrity is just as important as a person actually being above-board . This statement should then apply to both Additional and permanent Judge, but a permanent Judge cannot be removed from office on the ground that his reputation is bad. From long practice, mentioned earlier, an Additional Judge has a legitimate expectancy, if not a right, to be appointed for another term if the pending business in the High Court requires the services of an Additional Judge, or as a permanent Judge, when a vacancy is available, if he is the seniormost of the Additional Judges. Refusing to appoint him again when the conditions required an appointment to be made means in substance his removal. To remove a permanent Judge the prescribed procedure must be followed and the allegations against him proved; dropping an Additional Judge at the end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of article 222(1), therefore, means full and effective, not formal or unproductive, consultation. 125. From the facts appearing from the correspondence that passed between the Chief Justice of India and the Chief Justice of the High Court, the Chief Justice of the High Court and the Law Minister, and between the Chief Justice of India and Law Minister, it would appear clearly that there has been no complete and effective consultation on the question whether Shri Kumar's term as an Additional Judge of the Delhi High Court should be extended. It will be convenient for a proper appreciation of the matter to set out chronologically the gist of the letters that passed between the constitutional functionaries in Shri Kumar's case and certain other facts : February 19, 1981 The Chief Justice of the Delhi High Court wrote to the Union Law Minister that it was his very painful duty not to recommend an extension for Justice Kumar because there had been serious complaints against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed a letter to the Chief Justice of India. The Chief Justice ended the letter by saying : Perhaps you will consider this to be sufficient 'comments' on my part as desired by you in your letter under reply (letter dated March 19, 1981) about the observations of the Chief Justice of India which you have quoted in your letter . The letter that the Chief Justice wrote to the Chief Justice of India on the same day refers to the three points mentioned in his letter dated February 2, 1981 addressed to the Law Minister repeating that he had on investigating agency to conclusively find out whether the complaints are genuine or not . The letter ends as follows : With regard to the complaints about Justice Kumar's integrity and general conduct, the matter has already been discussed between us. About Justice Kumar not being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980. April 15, 1981 The Law Minister wrote to the Chief Justice of the High Court in reply to the letter dated March 28, 1981. Among other things, the Law Minister in this letter said : It is true that you have no investigating agency to conclusively establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that it was not only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench.... In some of these the parties involved were rich and influential including some former Princes . 126-27. The Chief Justice added that these unconfirmed reports made him conclude that the reputation for integrity of Justice Kumar was not what should be for a Judge of the High Court. To my mind, reputation of integrity is just as important as a person actually being above-board . The Chief Justice also mentioned certain figures to show the rate of disposal of cases by the Division Bench of which Justice Kumar was a member. 128. It seems from what the Chief Justice of the High Court said in his letter of May 7, 1981 that he had not recommended extension of Justice Kumar's term not really because he found the reports against Shri Kumar were true - he had admittedly no investigating machinery - but because he thought that reputation of integrity is as important as a man being actually above-board. I have already said that this is a view which will undermine the independe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court was keen on keeping the letter confidential form the Chief Justice of India , the letter was not shown to him. Whether the reasons for not disclosing the letter of May 7 to the Chief Justice of India were valid or not, it is clear that the Chief Justice of India was not apprised of the particulars contained in the letter of May 7 concerning Justice Kumar's integrity. It was argued on behalf of the Union of India and the Law Minister that it must be presumed that all the details were placed before the Chief Justice of India because the Chief Justice of the High Court in his letter dated March 28, 1981 addressed to the Law Minister had stated that he had an opportunity to discuss the entire matter in detail with the Chief Justice of India and that in another letter written on the same day to the Chief Justice of India he had said : With regard to the complaints about Justice Kumar's integrity and general conduct, the matter has already been discussed between us. That this presumption is wrong would appear from the following facts. On May 21, 1981 the Law Minister had written a letter to the Chief Justice of India when was in Simla. Paragraphs 3, 5 and 6 of this l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... careful and extensive enquiries in regard to both of these matters and I am satisfied that there is no substance in any one of them. I have with me a detailed statement of the disposals of Justice Kumar from which it would appear that no charge can be made against him that he is slow in his disposals..... As regards the complaint of the Chief Justice that Justice Kumar's integrity was doubtful since he continued to take old part-heard matters even after the allocation of his work was changed, I have made enquiries not only from members of the Bar but from the sitting Judges of the Delhi High Court which show that it is a common practice in the Delhi High Court that even after the allocation of a Judge is changed from the original side to the appellate side and vice versa, he continues to take up part-heard cases on which a substantial amount of time has been already spent. Justice Kumar therefore did nothing out of the way or unusual in taking up part- heard cases after the allocation of his work was changed. I find it therefore difficult to agree that Justice Kumar's term should not be extended for the reasons mentioned by the Chief Justice of the Delhi High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Justice of the High Court had a better occasion and opportunity to watch his (Justice Kumar's) working and conduct , he was in a better position to come to a correct conclusion as to the Judge's integrity, if all the facts concerning the matter were also placed before the Chief Justice of India; it is not like watching the demeanour of a witness to test his credibility. As regards the statement that the letter from the Chief Justice of the High Court furnished clear details which cannot easily be brushed aside , the details are only particulars of certain suits that Justice Kumar had dealt with, but it is difficult to follow what is sought to be conveyed by saying that these cannot easily be brushed aside . Mere details of the suits can indicate nothing regarding Justice Kumar's integrity. If however by 'details' the unconfirmed reports against Justice Kumar were also sought to be included, no reasonable person could accept them as true without proof. As regards the earlier portion of the note quoted above, the presumption that the Chief Justice of the High Court must have informed the Chief Justice of India about the details that the former had mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar would not ask for his explanation on this serious charge and discussed only the minor allegations against him. 132. As part of the relevant material was withheld from the Chief Justice of India it must be held that there was no full and effective consultation as contemplated in Article 217(1) and this vitiates the decision not to extend Shri Kumar's term of office as an Additional Judge of the Delhi High Court though the volume of pending work in that High Court required the services of another Judge. 133. In any event, even assuming that the Chief Justice of the Delhi High Court had informed the Chief Justice of India of the allegation of corruption against Shri Kumar, it is clear that it was not disclosed to Shri Kumar and he was not given an opportunity to explain the charge against him. Assuming again that Shri Kumar had no legal right to have his term extended, he had at least a legitimate expectation that his tenure as an Additional Judge would continue following the usual practice, and it appears from the letter of the Chief Justice of the Delhi High Court written to the Law Minister on February 19, 1981 that but for the allegations against him, Shri Kumar would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether or not the tenure of an Additional Judge should be extended, if all the relevant materials are before both, the Chief Justice of the High Court and the Chief Justice of India, it is difficult to see how the Chief Justice of the High Court is in a better position than the Chief Justice of India to give a correct opinion. However, as Krishna Iyer, J., has said in Samsher Singh case (Samsher Singh v. State of Punjab, the Chief Justice of India is the highest dignitary of Indian justice . The President has to consult him for the appointment of the Chief Justice of a High Court. He is, what Mr. R. K. Garg appearing for Shri S. N. Kumar in Transferred Case No. 20 of 1981 (which is Writ Petition No. 882 of 1981 filed in the Delhi High Court) described as the paterfamilias of the Indian judiciary. In my view the President should accept the opinion given by the Chief Justice of India in such a case unless the opinion suffers from any obvious infirmity; he cannot act as an umpire and choose between the two opinions. 135. For the reasons indicated above, the decision in Shri S. N. Kumar's case must be held invalid and the case should go back to the President for a fresh dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Chief Justice of India, transfer a Judge from one High Court to any other High Court. It was argued that the letter seeking to obtain general consent of the Additional Judges to their transfer to other High Courts was only a device to circumvent Article 222(1) reducing the requirement of consultation with the Chief Justice of India to a formality. Clearly, the Constitution does not contemplate taking of such general consent to transfer which might take place at some future dates in respect of only some of the Judges. The letter has thus no authority of law. This aspect has been dealt with in detail in the judgments of Tulzapurkar, J., and Pathak, J., which I have had the advantage of reading. I agree with them that the said letter dated March 18, 1981 is of no consequence legally and cannot bind or affect in any way those for whom it was intended. 138. This letter of March 18, 1981 suggests in defence of the proposed transfer of Judges that for furthering national integration and combating narrow parochial tendencies one-third of the Judges of a High Court should be from outside the State in which that High Court is situated. It has been held by a majority in Sankalchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment. Tulzapurkar, J. has dealt with this aspect of the case in detail in his judgment and I do not propose to go over the same ground as I agree with him for the reasons given by him that the impugned order of transfer is valid under Article 222(1) of the Constitution. 140. I would however like to add that an order of transfer even if made for administrative reasons and in public interest is likely to cause some injury to the Judge transferred, though that could not be valid ground for holding that the transfer is by way of punishment; it is the reason being the order of transfer that should determine its nature. It would be only fair not to let the Judge who is being transferred face more difficulties than are absolutely necessary. If the Judge is wholly unfamiliar with the language of the State to which he is transferred, it is possible in some cases that it will affect his efficiency. I would ask the Government to consider if it is possible to transfer Shri K. B. N. Singh to some High Court, consistent with his position as a senior Chief Justice, where the language difficulty will not be so acute. 141. for the Law Minister questioned the locus standi of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall give details of this circular when we deal with it. The circular was received by the Chief Justice of the Bombay High Court on March 29, 1981 and on March 30, 1981 he addressed a letter to the Additional Judge (respondents 3 to 12) and asked them to do the needful. The said circular seems to have created a serious upheaval in the rank and file of the lawyers of Bombay Bar resulting in a special general meeting of the Advocates Association of Western India on April 3, 1981. It is alleged in the petition that the meeting was largely attended and a unanimous resolution was passed, inter alia, condemning the circular as being subversive of judicial independence and demanding that the government be directed to withdraw the circular. The furore on the circular seems to have infiltrated into the Bombay Bar Association which also held several meetings and similar resolutions were passed. On April 14, 1981 a meeting of the Managing Committee of the Bombay Incorporated Society passed similar resolutions and also resolved that the President of the Society should join as a petitioner, as a result of which the fourth petitioner was added as one of the petitioners. As a mark of serious pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the Union Law Minister compelling more than 100 Additional Judges all over the country to give their consent for being appointed as permanent Judges outside their State on the pain of being dropped was that this was an indirect method of bypassing the consultative process contemplated by Article 222. 148. Apart from these apprehensions the petitioner made serious allegations the purport of which was that a consistent campaign had been launched by some of the Ministers of Central Government and Chief Ministers of States against the higher judiciary. In this connection, statements of a Cabinet Minister and some Chief Ministers were mentioned. Referring to some concrete cases it was alleged that although permanent vacancies in the High Court of Delhi were available yet Justice Goswami and Justice Sultan Singh instead of being made permanent Judges were appointed as Additional Judges for a period of two years in July and August 1980 respectively whereas Justice Vohra as an Additional Judge only for three months. It was further alleged that two more Additional Judges, viz., Justice Kumar and Justice Wad were appointed for three months. According to the allegations made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt : (d) issue a writ, order or direction in the nature of mandamus directing the President of India to fill the vacancy of the Additional Judges of the High Court without delay. Transferred Case No. 21 of 1981 151. A petition exactly similar to the one filed by Mr. S. P. Gupta was also filed by Mr. J. L. Kalra, Advocate and others in the Delhi High Court which was also transferred to this Court by an Order dated May 1, 1981 along with the case of Mr. S. P. Gupta. In this case, the following reliefs were sought :(a) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent to assess the number of permanent and Additional judges required for this Hon'ble Court having regard to its current business and the accumulated arrears of work and create such number of permanent and Additional posts of Judges as may be required, within such reasonable time as this Hon'ble Court may deem fit, in accordance with law; (b) direct the respondent to appoint Hon'ble Mr. Justice N. N. Goswamy, Hon'ble Mr. Justice Sultan Singh and Hon'ble Mr. Justice O. N. Vohra as permanent Judges of this Hon'ble Court against the three v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferred Case No. 24 of 1981 155. So far as the case of Justice K. B. N. Singh, Chief Justice of the Patna High Court is concerned, Mr. D. N. Pandey, Secretary of the Bihar State Socialist Lawyers Association along with Thakur Ramapati Sinha filed a Writ Petition No. CMJC 2224 of 1981 in the Patna High Court against the Union of India, the Chief Justice of India, Mr. Justice K. B. N. Singh, Chief Justice of the Patna High Court and the Registrar, Patna High Court. Justice K. B. N. Singh, respondent 3, later after filing an affidavit in this Court prayed that he may be transposed to the category of petitioner. He was directed to file a detailed affidavit which was filed on September 16, 1981 and he was transposed as petitioner 3. This petition was also transferred to this Court as similar points were involved. In this petition, the petitioners prayed that the order of the President transferring Justice K. B. N. Singh be quashed and the respondents be directed not to give effect to the notification issued by the President transferring petitioner 3 to Madras. Transferred Case No. 6 of 1981 156. A similar Writ Petition No. 553 of 1981 was filed by Mr. P. Subramanian before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interpretation of Article 222, apart from its legislative history and setting, may be indicated as follows : (1) The language of Article 222(1) is clear enough to enable the Court to hold that the transfer must be with the consent of the Judge concerned. Even if it is not so, then the main object of Article 222 is not very clear and plain and therefore, it is necessary to go into the legislative history of the Doctrine of Transfer in order to ascertain the real intention of the Founding Fathers of the Constitution and, if so read, it would be amply clear that even if Article 222(1) does not expressly mention 'consent', the same must be implied in the article by necessary intendment. (2) As transfer of a High Court Judge from one High Court to another is an extraordinary phenomenon and has to be made in public interest, we must read consent of the Judge concerned before he can be transferred under Article 222, otherwise the very purpose and object of the article would be defeated. (3) As a transfer without consent of a Judge amounts to punishment, such a transfer involves a serious stain and stigma. Hence, in order to avoid such an anomalous position it should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'Sheth case') merits a second look and since the present is a large Bench consisting of seven Judges, the previous decision should be reconsidered and the view taken therein that consent is not necessary for the application of Article 222, must be overruled. 162. Thus, the sum and substance of the contentions raised by Mr. Seervai is that the words 'with his consent' should be read into Article 222(1) after the words 'transfer a Judge'. 163. Messrs. Sorabjee, R. K. Garg and S. P. Gupta who followed Mr. Seervai adopted his arguments in toto so far as the interpretation of Article 222 is concerned. They, however, laid greater emphasis on the question of primacy of the Chief Justice of India (hereinafter referred to as'CJI') and contended that the opinion of the CJI was final and binding on the President or on the Council of Ministers who should tender advice to the President in accordance with the opinion expressed by the CJI if independence of judiciary was to be ensured. 164. Dr. Singhvi while adopting the arguments of Mr. Seervai submitted that a transfer without consent affects a Judge adversely and results in evil consequences and virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the President or an executive order of the Council of Ministers without any legislation ? (c) Is the policy of recruiting one-third Judges from outside the State good, valid and constitutional and, if so, what should be the mechanism for implementing the said policy and the manner of its formulation ? (d) Has it been shown that the aforesaid policy has already been evolved, formulated and finalised by the Central Government ? 4. Article 216 (a) What is the scope of the power of the President under this article ? (b) Is the exercise of the power by the President under this article amenable to the judicial review and, if so, to what extent ? 5. Article 224 (a) What are the conditions and circumstances under which Additional Judges can be appointed ? (b) On the expiration of his term, is an Additional Judge entitled to be continued automatically, if the conditions for appointment of an Additional Judge continue to exist or is he again liable to be subjected to the process of Article 217. (c) Does the additional Judge have a right to be considered for appointment for a further term or as permanent Judge on expiration of his term or he can be just dropped wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which has been explained by all the Judges. In that case Bhagwati, J. and Untwalia, J. dissented from the majority decision and took the view that no transfer of one High Court Judge to another High Court can be made without his consent. In other words the minority was of the view that the word 'consent' has to be read into Article 222 having regard to the extraordinary circumstances in which such a power is exercised and the constitutional position of a Judge. Normally, the decision in Sheth case would have concluded the matter because in the instant case also the points raised are more or less similar but the arguments advanced before us in these cases have revealed many more aspects which may not have been before this Court in Sheth case and have opened new vistas which undoubtedly require a further consideration. Moreover, in that case the stand taken by the Union of India was that the matter may be decided as a sort of an academic question as the transfers made by the previous Government would be nullified by retransferring them. In view of this concession made by the Union of India in that case it was not necessary for this Court to go deep into the matter because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Mridul. The main reason why this Court had held that the transfer of a Judge from one high Court to another should be in public interest was that the President should not exercise power by way of victimisation or to impede the free flow of public justice or as Chandrachud, J., put it for an extraneous of collateral purpose . Where, however, the compelling circumstances and the exigencies of administration or situation are objectively considered and it becomes necessary for the exercise of this power, these factors would constitute public interest to justify the exercise of the power by the President under Article 222. In the instant case, a general and unanimous policy of transfer of Judges and Chief Justices of High Courts to promote national integration and suppress fissiparous tendencies,, would doubtless be in public interest. Although Article 222 does not contain the words 'public interest' in so many words but (sic from) the very exercise of the power, which is not a normal power but an exceptional one, it follows as a logical consequence that public interest is a necessary concomitant of the exercise of this power. 174. The question that now arises is if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 'consultation' used in various articles to determine the context, the purport and the intention of the Founding Fathers of the Constitution. 176. Take, for instance, Article 127 which expressly deals with previous consent of the President, and may be extracted thus : 127. Appointment of ad hoc Judges. - (1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India. (2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court : Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do. 183. The provisions of this article make the exercise of powers conditional on the consent of the Judge concerned. In Chandra Mohan v. State of U.P. this Court has clearly indicated that where the Constitution intended particular expressions to be used it has expressed its intention clearly and observed thus :Wherever the Constitution intended to provide more than one consultant, it has said so : see Articles 124(2) and 217(1). Whereever the Constitution provided for consultation of a single body or individual it sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends. 187. Here also, the Governor of a State has to exercise a particular power only with the consent of the Government of India and not otherwise. This also shows that the Founding Fathers were fully aware of the situations where consent is necessary and where it is not. 188. Article 254 deals with the legislative powers of the Centre and the States. Clause (2) of Article 254 provides thus : 254. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State Shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State : Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other hand, an analysis of Article 217(1) (c) shows that the constitutional provision makes a clear-cut distinction between appointment and transfer. 193. We stick to the view expressed by Krishna Iyer, J. in the majority judgment. The argument of Mr. Seervai appears to be fallacious because this analogy cannot be applied to a Judge who after being appointed is transferred under Article 222. It is obvious that there is no provision in the Constitution empowering the President to appoint for the first time a person as a Judge of a High Court against his consent and even if he is appointed, the person so appointed can refuse to act as a Judge and if he does so the matter ends there and he cannot be compelled to act as a Judge. Once, however, the person decides to accept the appointment of a Judge of a High Court he becomes a constitutional functionary and therefore would be subject to the provisions of the Constitution because before deciding to accept the appointment he must be presumed to be aware of the constitutional provisions contained in the various Articles regarding High Court Judges, viz., the conditions of service, the salary and other allowances, the date of reti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government can be rectified only by a constitutional amendment which is a very complicated, complex, delicate and difficult procedure requiring not merely a simple majority but two-third majority of the Members present and voting. Apart from the aforesaid majority, in most cases the amendment has to be ratified by a majority of the States. In these circumstances, therefore, this Court which lays down the law of the land under Article 141 must be extremely careful and circumspect in interpreting statutes, more so constitutional provisions, so as to obviate the necessity of a constitutional amendment every time which, as we have already mentioned, is an extremely onerous task. S. R. Das. C.J. in the case of Bengal Immunity Co. Ltd. v. State of Bihar expressly referred to this aspect of the matter and observed as follows :An erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great determent to public well being. 196. Having carefully interpreted a particular provision of the Constitution, the Court should as far as possible stick to the doctrine of stare decisis. It must be remember ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom. 200. It is equally well settled that it is not the duty of the court to import words which have been omitted deliberately or intentionally in order to fill up a gap or supply omissions to fit in with the ideology or concept of the Judge concerned. The words and the language used must be given their natural meaning and interpreted in their ordinary and popular sense. 201. There may be a third type of cases which may be on the border line - where the language may admit of two interpretations in which case the court may consider the desirability of resorting to external aids in order to catch and delve into the spirit and object of the statute. 202. These principles have been enunciated over the years by several authorities of various courts to which I shall refer hereafter. Before, however, going to the authorities, it may be necessary to refer to extracts from the various books of legal scholars on the interpretation of statutes. 203. Crawford in his book captioned Statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : According to the weight of authority, and surely the better view, the court may consider the general history of a statute, including its derivation that is, the various steps leading up to and attending its enactment, as shown by the legislative journals, in its effort to ascertain the intention of the legislature where it is in doubt. Conversely, the legislative history cannot be considered where the statute's meaning is plain. (p. 383) 208. Here also, we find that history, etc., is permissible only where the language of a statute is ambiguous and not where the meaning of the statute is plain and clear. 209. Vepa P. Sarathi in Interpretation of Statutes (1975 Edn.) observes thus : In order to arrive at the intention of the legislature, the state of law and judicial decisions antecedent to and at the time the statute was passed are material matters to be considered... Courts sometimes make a distinction between legislative debates and reports of committees and treat the latter as a more reliable or satisfactory source of assistance. It is submitted that the subtle distinction that parliamentary history may be referred for ascertaining the intention, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly observed that in the interpretative process casus omissus is not to be added or supplied. In this connection, the following observations have been made at page 70 : A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made..... Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there. and quoting Lord Parker, the author says thus : Where the literal reading of a statute... produces an intelligible result... There is no ground for reading in words or changing words according to what may be the supposed intention of Parliament. 214. At page 66, the author observes thus : The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves... If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... schief and defect for which the common law did not provide. 3rd. What remedy the Parliament had resolved and appointed to cure the disease of the commonwealth.And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. 219. This case has been followed both by this Court as also by the courts in England for a pretty length of time. This may be the starting point of the manner and the method which the court should adopt in interpretation of statutes. 220. The authorities on the question of interpretation of the constitutional provisions may roughly be divided into four categories which may not exactly be absolutely separate or independent so as to be confined in a watertight compartment but in some cases may overlap, yet they generally lay down the law on the subject categorised by us : Categories (A) Where the language of a statute is pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latent ambiguities are to be solved.... 224. The same view was expressed by Gajendragadkar, J. (as he then was) in Kanai Lal Sur v. Paramnidhi Sadhukhan where the learned Judge observed as follows :If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. 225. In M. Pentiah v. Muddala Veeramallappa Sarkar, J. observed thus : Where the main object and intention of a statute are clear, it must not be reduced to a nullity be the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a statute, or to add words to it, and it has been said that they will only do so where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule of interpretation that the words used by the Legislature must be construed according to their plain natural meaning. 232. In Anandji Haridas Co. (Pvt.) Ltd. v. Engineering Mazdoor Sangh this Court observed as follows : (SCC p. 865, para 10) As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. 233. In Mangalore Electric Supply Co. Ltd. v. C.I.T. , this Court observed thus : (SCC pp. 253-54, paras 7-8) The justification for this submission is stated to be that the word 'transfer', occurs in the collocation of three other words 'sale', 'exchange' and 'relinquishment' which are essentially volitional or voluntary acts, leading to the conclusion that the word 'transfer' must take its colour from the three other words in association with which it is use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act itself; but though I do not deny that such topics may usefully be employed to interpret the meaning of a statute, they do not, in my view, afford conclusive argument here. 237. In A. K. Gopalan case, Patanjali Sastri, J. (as he then was) observed as follows : It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression except according to procedure established by law taken from the Japanese Constitution, 1946, for words without due process of law which occurred in the original draft, as the former is more specific . 238. The learned Judge has clearly indicated that the reason why our Founding Fathers substituted the words 'except according to procedure established by law' in Article 21 instead of the words without due process of law as used in the American Constitution was because they implemented the Report of the Drafting Committee which had taken the words 'procedure established by law' from the Japanese Constitution of 1946. His Lordship then indicated the nature, extent and the circumstances in which external aid could be used to construe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with Julius Stone and Justice Frankfurter. Of Course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matter. 243. An identical view was taken in a later case of this Court in Fagu Shaw v. State of West Bengal where Bhagwati, J. relied on the decision extracted a above and observed thus : (SCC p. 169, para 33) Since the purpose of interpretation is to ascertain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared iron and steel goods would remove ambiguity. The Select Committee, which recommended the amendment, called each specified category a sub-item falling under iron and steel . 248. In this case, the court relied on the Report of the Select Committee as also on the Statement of Objects and Reasons of the Act in order to elucidate the definition of certain words used in the statute. 249. To the same effect is a later decision of this Court in Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agarwal , where the Court observed as follows : (SCC p. 165, para 4) Amending Act 22 of 1972 was, therefore, enacted for the express purpose of saving decree which had already been passed. The Statement of Objects and Reasons of the Amending Act stated : 250. Same view was taken in a batch of appeals by this Court in M/s. Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax, where Bhagwati, J. (one of us) took into consideration the subsequent history of the Act as also the Statement of Objects and Reasons in order to construe certain provisions of the statute concerned and observed thus : (SCC p. 661, para 16)The subsequent history of the Act also supports the constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner (6 Moore PC 1 : (1846-51) 4 Moore IA 179) aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Official Liquidator of the Dehra Dun-Mussoorie Electric Tramway Co. Ltd. (1933 60 IA 13 : : 142 IC 7) for others than the Courts to remedy the defect. 255. Thus, this Court has clearly held that in construing a statutory or a constitutional provision, the Court should not presume that the legislature has either committed a mistake or has omitted something which was very necessary. Das, J. very rightly remarked that it was not for the court but for others to remedy the defect, if any, found in a statutory provision. If we accept the argument of Mr. Seervai and read the word 'consent' in Article 222 by supplying the omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s manifest that none of these conditions apply to Article 222 and therefore to supply the omission by reading the word 'consent' would really be going against the principles laid down by this Court in the aforesaid case. 261. In Gurbaksh Singh Sibbia v. State of Punjab Chandrachud, C.J. while dealing with this particular aspect of canon of construction of a statute, vary pithily observed thus : (SCC p. 577, para 12) By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. 262. It follows from the observations made by this Court that if the word 'consent' is read into Article 222 then it will amount to imposing unnecessary restraints and conditions in the article which are not there at all and which cannot be done under the well-known rules of interpretation of statutes. Category 'D' 263. In this category we shall include those cases which hold that a speech made by a Minister or by a Member of Parliament is neither admissible nor permissible to construe a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature which reflect the individual opinion of the speaker cannot be referred to for the purpose of construing the Act as it finally emerged from the Legislature and so the debates must be left out of consideration. 267. It appears that while all the Judges were unanimously of the opinion that speech by a Minister or a speaker in the course of a debate was not admissible to construe the intention of the legislature, the majority judgment held that external aid in the nature of the legislative debates which resulted in the coming into existence of the constitutional provisions and were in close proximity to the same, could be pressed into service. On this point we would like to follow the majority decision on the subject, subject of course to the condition that the language of a statute does not clearly spell out the dominant object which was sought to be achieved by the legislature. 268. In State of West Bengal v. Union of India Sinha, C.J. speaking for himself, Jafer Imam, Shah, Ayyangar and Mudholkar, JJ. observed as follows : A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to suit what the courts think is the supposed intention of the legislature. (2) Where, however, the words or expressions used in the constitutional or statutory provisions are shrouded in mystery, clouded with ambiguity and are unclear and unintelligible so that the dominant object and spirit of the legislature cannot be spelt out from the language, external aids in the nature of parliamentary debates, immediately preceding the passing of the statute, the report of the Select Committees or its Chairman, the Statement of Objects and Reasons of the statute, if any, or any statement made by the sponsor of the statute which is in close proximity to the actual introduction or insertion of the statutory provision so as to become, as it were, a result of the statement made, can be pressed into service in order to ascertain the real purport, intent and will of the legislature to make the constitutional provision workable.We might make it clear that such aids may neither be decisive nor conclusive but they would certainly assist the courts in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the attempt of Mr. Seervai is merely to create a so-called cloud of suspicion and mystery and then to resolve it by asking the court to read consent into it. In other words, the counsel for the respondents have fully supported the propositions which we have adumbrated above. 277. Assuming for the sake of argument, particularly in view of the far- reaching consequences of our decision and the large magnitude of the arguments that have been addressed to us, that the dominant object of Article 222 is not very clear or unambiguous, we may discuss the legislative history of introduction of Article 222 in the Constitution as also the parliamentary debates or Reports of the Drafting or Select Committees as a direct result of which the said Article came into existence. 278. So far as the legislative history of the provisions prior to the Constitution regarding the functioning and the constitution of High Court is concerned, we might start from the Government of India Act, 1915 (hereinafter referred to as the '1915 Act') because the prior Acts are neither helpful nor germane for construing the questions at issue in these petitions. Sections 101 to 114 of the 1915 Act are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act perhaps because at that time there were no heavy arrears. 280. The next statute which merits consideration is the Government of India Act, 1935 (hereinafter referred to as the '1935 Act') which is merely a precursor of our Constitution as most of its provisions are based on the pattern and structure of this Act. The relevant sections dealing with High Courts are Sections 219 to 231 and 253 to 256. Section 220 makes two marked improvements on the previous provisions of the 1915 Act - (1) that every Judge appointed by His Majesty held office until he attained the age of 60 years and not at the pleasure of His Majesty as provided by Section 102 of the 1915 Act, and (2) Section 220(2)(b) expressly states that a Judge can be removed on the ground of misbehaviour or infirmity of body or mind if the Judicial Committee of the privy Council, on a preference made to it by His Majesty, reported that the Judge ought on any such ground be removed. This provision has been retained by our Constitution but the procedure of removal has been substituted by the procedure of impeachment as contained in Article 124(4) read with Article 218. 281. Although there is no specific provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court to another results in vacation of his office and therefore must be construed to be a fresh appointment implying thereby that he could be transferred only if he gives his consent as when he is first appointed to the High Court. The fact that he gives his consent has to be implied, for he cannot be appointed as a High Court Judge against his consent. 285. We have mentioned these circumstances in order to highlight the second argument of Mr. Seervai regarding interpretation of Article 217(1) proviso (c) on the basis of which he contended that this would show that the transfer of a Judge under Article 222 amounted to a first or a fresh appointment in the transferee court, as the moment a Judge is transferred to another High Court, he vacates his office in the original High Court and assumes the charge of a new office only after taking the oath. It was suggested by Mr. Seervai that under proviso (c) to Article 217(1) just as a Judge vacates his office on being appointed as a Judge of the Supreme Court, identical consequences follow when he is transferred to any other High Court. 286. The Attorney-General has rightly pointed out that the proviso itself makes a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge is vacated in a fictional sense because there is a complete change in the life of the Judge but that does not mean that the incidents of both these appointments are the same. A Judge of the High Court when appointed as a Judge of the Supreme Court cannot be equated in any respect with a Judge of the high Court who is transferred to another High Court and continues to possess the same status, position and emoluments which is essentially different from a Judge of the Supreme Court. Mr. Seervai, however, submitted that both Article 124 which relate to the appointment of a Supreme Court Judge and Article 217 which provide for the appointment of a High Court Judge do not mention anything about obtaining the consent of a Judge which has to be implied in both the cases. On a parity of reasoning it was submitted that where a Judge is appointed in a High Court or transferred to another Court, every time it is a new appointment as a result of which the Judge of the High Court on being transferred to another court has to take a fresh oath because he ceases to be a Judge in the court of its origin. It is true that on being transferred to another High Court a Judge ceases to be a Judge but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question in this particular case. 291. The last plank of the argument of Mr. Seervai was that no stress can be laid on the distinction between 'appointment' and 'transfer' because these are synonymous and interchangeable terms and in this connection he relied on a decision of this Court in Kesavananda Bharati v. State of Kerala (1973 Supp SCR 1 : AIR 1973 1461 ) where Chandrachud, J. (as he then was) observed as follows : (SCC p. 969, para 2017) These are not words occurring in a school textbook so that one can find their meaning with a dictionary on one's right and a book of grammar on one's left. These are words occurring in a Constitution and one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in a single complex instrument, in which one part may throw light on another , so that the construction must hold a balance between all its parts ..... A word is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used. (Per Holmes, J. in Towne v. Eisner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like the I.C.S. and that they should be liable to be transferred from one High Court another. If such power was not reserved to the Centre the administration of justice might become a very difficult matter. It might be necessary that one judge may be transferred from one High Court to another in order to strengthen the High Court elsewhere by importing better talent which may not be locally available. Secondly, it might be desirable to import a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government.We also took into account the fact that this power of transfer of judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular judge from its High Court because that judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We have taken care that in effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been later introduced as a result of the speech of Dr. Ambedkar as indicated above. Furthermore, it would appear from the Note appended by Mr. Santhanam in his book Constitution of India as to how and under what circumstances the present Article 222 came to be incorporated in the Constitution, where at page 169 the author says thus : This is a new article inserted in the final stag. It was objected that this power might be used to punish a judge who might not be in the good books of the Central Government. It was also suggested that such transfer should be made only with the consent of the judge concerned. This suggestion was rejected because it might become necessary in the national interests to send a competent judge to some part of India in spite of his own inclinations. The president may be trusted not to use this power to the detriment of judicial independence. 299. This note clearly shows that even at the time when Article 222 was taking its birth there was some talk of making the transfer with the consent of the Judge concerned but this idea was given up when it was pointed out that in the national interest it may be necessary to send a competent Judge to another High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Africa and Australia are much smaller than ours. Our Constitution as I said contains 395 articles while the American has just seven articles, the first four of which are divided into sections which total up to 21, the Canadian has 147, the Australian 128 and the South African, 153 sections. The second thing to be remembered is that the makers of the Constitutions of America, Canada, Australia and South Africa did not have to face the problem of amendments. They were passed as moved. On the other hand, this Constituent Assembly had to deal with as many as 2,473 amendments. Having regard to these facts the charge of dilatoriness seems to me quite unfounded and this Assembly may well congratulate itself for having accomplished so formidable a task in so short a time. 302. Similarly, Dr. Rajendra Prasad, who was President of the Drafting Committee, observed thus : (Ibid., pp. 951-952) We considered whether we should adopt the American model or the British model where we have a hereditary king who is the fountain of all honour and power, but who does not actually enjoy any power. All the power rests in the Legislature to which the Ministers are responsible. We have had to reconcile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasise the actual philosophy of the Constitution so that the various articles may be read in the light of the views and the desire expressed by the Founding Fathers. Secondly, the fact that our Constitution is based not on the American but on the British pattern is established from the observations extracted above and the internal evidence furnished by the various provisions of the Constitution itself. It is true that we have borrowed some provisions from the American Constitution and others from the Japanese Constitution but by and large our Constitution is fashioned on the British pattern. Therefore, while considering the doctrine of privilege or the doctrine of candour it would be safer to rely on English cases rather than the American doctrine. However, this aspect of the matter will be dealt with at the appropriate stage. 306. It was next contended both by Mr. Seervai and Dr. Singhvi that non- consensual transfers of High Court Judges are punitive in nature and amount to punishment. Detailed contentions in this regard have already been narrated by us when we dealt with their contentions on this point. One of the cardinal points made out by the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the process of effective consultation, the possibility of abuse of power is completely ruled out. This Court in that case had laid down sufficient safeguards against a wrong or colourable exercise of power by the President under Article 222. Therefore, there is no reason to presume that any order which is passed by the President under Article 222 henceforward is bound to be mala fide or colourable and even if it is in a particular case or cases, it is doubtless subject to judicial review. 307. It was then contended that a transfer of a judge from one High Court to another entails evil consequences inasmuch as it uproots the judge from his hearth and home and transplants him in a new and alien place where he has to start his life or career anew and face several personal difficulties and inconveniences. Once it is conceded that the power of transfer under Article 222 is to be exercised in public interest, then any inconvenience that is felt by the judge would have to yield to the larger interest of the community so as to make the said article workable. Although Article 222 is an extraordinary power, whenever a person accepts judgeship of a High Court he is fully aware that dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, along with his family, at Government cost once a year. The Judges Rules, as amended, further enjoin that the Judge must be supplied with a free furnished house which under the Amendment Act of 1981 is not even to be treated as a perquisite under the Income Tax Act. It is true that some of these facilities are available to a Judge in his original High Court also but the totality of the facilities taken into consideration undoubtedly seek to make him as comfortable as possible in the transferee court also. 310. In the speeches and statements of the Members of the Drafting Committee particularly those of Dr. Ambedkar Article 222 (which was Article 128 in Draft Constitution ) was introduced not by way of punishing a judge but to import better talents in other High Courts and enable the judge to work in a free and fair atmosphere where he can work without any local influence. Indeed, if our Founding Fathers were alive today and were to be told to their utter dismay that transfer amounts to a punishment, they would have got the greatest shock of their life. 311. Far from being a punishment the transfer of a judge does not involve any stain or stigma nor even the slightest reflec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. R. Dasgupta from Calcutta to Karnataka High Court. 9. Justice Ansari from Andhra Pradesh to Kerala High Court. 10. Justice A. D. Koshal from Punjab Haryana High Court to Madras High Court. 312. Apart from these there were other transfers, a list of which was submitted by the counsel for the respondents. 313. These Judges have left an indelible imprint in the judiciary of the State where on transfer or appointment they worked. We might also mention that the Solicitor-General in his statement at the Bar drew our attention to the excellent manner in which our colleague Justice A. D. Koshal shaped himself when he was transferred to Madras during the emergency. The Solicitor-General said that he had left behind an unparalleled reputation of being a very sharp and independent Judge. These circumstances, therefore, fully justify transfer of judges from one High Court to another. 314. The Attorney-General with his usual ingenuity submitted a very plausible argument in order to show that transfer of a judge from one High Court to another under certain circumstances even though inconvenient cannot by any process of reasoning amount to a reflection or stigma. It was submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is very short and simple. Where a judge is transferred because the environment or the atmosphere is not congenial or conducive to administration of impartial justice, he does so as a conscientious judge responding to a call of duty but where his sons or relations follow him in the transferee court then it becomes the most cogent and reliable evidence to show that the judge openly allows himself to be exploited by his sons or relations and this per se would be conclusive proof of misbehaviour for which he can be impeached under Article 124(4) read with Article 218. If these facts are proved, then he will have to be removed, for no court can ever accept a plea of the judge that even after he was transferred to some other court his close relations followed him there without his knowledge. 317. Another difficulty which was pointed out before us was regarding the language problem. This, however, appears to be of a very minor significance as compared to various plus points indicated above. After all, the British Judges could administer justice for two centuries in our country without knowing our language. Furthermore, at the High Court level there are ample facilities for translating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also Acts passed by the Parliament and the peak of the judicial power reached when in Kesavananda Bharati case this Court held that the amending power enshrined in Article 368 of the Constitution could not be amended so as to affect the basic structure of the Constitution. We might mention that it has, however, not been doubted by counsel for any of the parties that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution. While this absolute judicial power has been conceded by the Constitution to the judiciary, a certain amount of executive control has already been vested in the higher judiciary in respect of the subordinate judiciary. At the same time, the power of appointment of High Court Judges including the CJ of Supreme Court Judges, including the CJI, vets entirely in the executive i.e., the President of India, who acts on the advice of Council of Ministers. Here again, this executive power is not absolute and has to be exercised in consultation with the CJI in the case of appointment of Supreme Court Judges, as also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident, in whom the executive power vests, to be bound by the advice of the council of Ministers. Therefore, under our Constitution for all practical intents and purposes the executive power vests in the Council of Ministers only and the President is bound to accept the advice of the Council of Ministers. Proviso to clause (1) of Article 74 may be extracted thus :Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. 324. Under this proviso, the President has no doubt the power to require the Council of Ministers to reconsider the advice if he (President) entertains any doubt in respect of the advice tendered to him, but if the same advice is given to him after reconsideration, the same is binding on him. Clause (2) of Article 74 bars any inquiry by a court into the nature of the advice tendered by Council of Ministers to the President. 325. Thus, under our Constitution the executive power does not vest absolutely in the President as in the case of America where the President has got vast powers and is assisted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the theory of complete insulation of the judicial system from the executive control. During the formative process of our Constitution though jurists like Shri B. N. Rau and Dr. Ambedkar wanted to give larger powers to the CJI or to a Council of State which may be appointed so as to be a judicial body but these ideas were not accepted and ultimately the Constitution emerged as a valuable document which vests complete power in the President. The facts will be borne out from the observations made on pages 338-339 of Shiva Rao's The Framing of India's Constitution (Vol. IV), and on pages 128-132 of The Indian Constitution - Cornerstone of Nation by G. Austin. Even an attempt of Dr. Austin and others to introduce instrument of instructions to provide guide- lines for the action to be taken by the President was rejected. 331. In fact, the method of appointment adopted by our country seems to have been followed in every democratic country except the United States where, as already shown, the Judges are not appointed by the executive excepting the Chief Justice of the Supreme Court but by the judiciary. Even in America, the Federal Court Judges of the States are not appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions. 334. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual judge. 335. There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method - (1) by guaranteeing complete safety of tenure to judges except removal in cases of incapacity or misbehaviour which is not only a very complex and complicated procedure but a difficult and onerous one,(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different. 338. Dr. Singhvi then advanced the same argument which was put forward by Mr. Seervai that a transfer without consent would be punitive both in concept and consequences and would promote a relationship of master and servant which is inapplicable to the case of Judges and the Chief Justices. We are, however, unable to accept this extreme argument because for the reasons that we have already given a transfer in public interest is an extraordinary provision which does not entail any stain or stigma and is a constitutional step which completely excludes the concept of master-servant relationship. 339. Dr. Singhvi later rightly laid greater stress on the nature and extent of the consultative process in the case of transfer. It was also submitted that even if a judge is transferred individually, public interest, which leads to his transfer, would also have to be examined by the court. We propose to examine this aspect in greater detail when we deal with Transferred Case No. 24 of 1981. At the moment it is sufficient to state that for the reasons that we have already given a non-consensual transfer cannot be treated as punitive, penal or punishment. Furthermore, we might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the proposal emanates from the CJI himself, then he should collect the necessary facts and examine the reasons given by the Minister concerned for the transfer and before giving his opinion or advice to the Minister he would have to consult the judge concerned and ascertain his views and give due consideration to them. Thereafter he should also communicate the views expressed by the judge concerned - whether against or in favour of the proposal - to the President through the Minister concerned so that even if the CJI does not agree with the view of the judge, the President may be in a position to give his decision finally one way or the other. 343. These are the essential requirements of Article 222 which are briefly contained in the memorandum though not strictly in consonance with what we have said above. We might hasten to add here that although the Constitution does not mention either the Chief Minister or the Governor of the State being consulted in the manner of transfer of a judge from one High Court to another but the memorandum provides for this procedure in order to solve some practical difficulties because when a judge is transferred from one State to another the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment or involve any stigma, (4) that in suitable cases where mala fide is writ large on the face of it, an order of transfer made by the President would be subject to judicial review, (5) that the transfer of a judge from one High Court to another does not amount to a first or fresh appointment in any sense of the term, (6) that a transfer made under Article 222 after complying with the conditions and circumstances mentioned above does not mar or erode the independence of judiciary. 346. For the reasons given above, the contentions of Mr. Seervai, Dr. Singhvi and others fail and are overruled. Point No. 3 - Policy of General Transfers 347. We now come to the question of involving a general policy of transfers (for short, to be referred to as the 'Policy') of Judges or Chief Justices from the home State to other States so that each State or a majority of them has a CJ from outside. Policy has two important limbs - (1) transfer of CJ or Judges from one High Court to another, and (2) recruitment of one- third judges in each High Court from outside the State in which the High Court is situate. The earliest roots and the foundation for evolving the aforesaid Policy ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its Report :846. We have now come to the end of our appointed task. The problem of reorganisation of States has aroused such passions and the claims which have been made are so many and is conflicting that the background against which this whole problem has to be dealt with may quite often be obscured or even forgotten. In order that the recommendations which we have made may be viewed in proper perspective, we should like to emphasise two basic facts. Firstly, the States, whether they are reorganised or not, are and will continue to be integral parts of a Union which is far and away the more real political entity and the basis of our nationhood. Secondly, the Constitution of India recognises only one citizenship, a common citizenship for the entire Indian people, with equal rights and opportunities throughout the Union. (p. 229) 350. Speaking in the same strain the SRC further observed thus : 849. Unfortunately, the manner in which certain administrations have conducted their affairs has itself partly contributed to the growth of this parochial sentiment. We have referred earlier to the domicile rules which are in force in certain States, governing eligibility to State ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution and will call for a constant review of our traditional methods of thought and ways of life. 353. Here also the SRC took special care to lay great emphasis on the feelings of commonness, unity and integration in all spheres of activity so as to give a deeper content to independence and nationalism. In para 861 of its Report while dealing with the judiciary the SRC recommended that at least one-third of the number of Judges in a High Court should consist of persons recruited from outside the State and in this connection observed as follows :Guided by the consideration that the principal organs of State should be constituted as to inspire confidence and to help in arresting parochial trends, we would also recommend that at least one-third of the number of Judges in a High Court should consist of persons who are recruited from outside that State. In making appointments to a High Court Bench, professional standing and ability must obviously be the overriding considerations. But the suggestion we have made will extend the filed of choice and will have the advantage of regulating the staffing of the higher judiciary as far as possible on the same principles as in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of Chief Justice by appointing a judge from outside the State. Such course, it is said, will have the advantage of giving the Chief Justice of India a wide choice in recommending a person suitable for that office. It has also been pressed upon us that bringing a Chief Justice from outside the State will have a very healthy influence, in that, it will promote a sense of unity in the country and prevent the Chief Justice (from) being swayed by local connections and local influences. It may be mentioned that Chief Justices from outside the State have been appointed in some of the States and these appointments have proved a success. Though the analogy may not be very pertinent, we may refer to the practice of appointing Governors who do not belong to the State, which has been in vogue since the advent of the Constitution. 356. The observations referred to above clearly show that as far back as 1958 there was a strong view in favour of filling up the vacancies of CJs by appointing a judge from outside the State. Although the Law Commission did not entirely agree with this opinion but it did notice that there was sufficient evidence to justify the same. As regards the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time in 1978 and the Bar Council of India in its reply dated September 8, 1979 to questions Nos. 11 and 12 answered thus : Question Answer 11. What is your view with regard to the suggestion that we should more frequently appoint a Judge from outside the State as Chief Justice of the High Court. Yes 12. What is your view with regard to the suggestion that we should have a convention according to which one-third of the Judges in each High Court should be from another State. Yes 362. In his speech on February 26, 1979 in the Lok Sabha Debates, Mr. P. Shiv Shankar, who was then a Member of Parliament only and not even in the then Ruling Party, expressed his opinion thus : Various reports of the Law Commission with reference to recruitment policy and the policy on transfer of Judges from one High Court to the other, have been only gathering dust. While I am one among those persons who will fight till the last for the independence of judiciary, I would say that the policy as to the transfer of Judges as enunciated by the Law Commission in the year 1958, under the chairmanship of late Shri Setalvad, of which one of our very eminent members of the profession, viz., Shri Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and emotions... . We in India are in the fortunate position of having a vast country. There can, therefore, be no difficulty in having a certain percentage of judges who hail from other States. The advantages gained by having persons from other States as judges would be much greater compared with any disadvantage which might result therefrom. 367. A national Seminar was held on judicial appointment between October 17-19, 1980 at Ahmedabad, in which various eminent speakers participated and freely expressed their views. The Seminar was organised by the Bar Council of India Trust and its deliberations may be extracted thus : The Seminar was of the view that the principle of transfer of Judges in all circumstances is not to be considered as violative of independence of judiciary. In fact, in certain situations transfer of a judge may be a very desirable course to follow for preserving independence of the judiciary, promoting national integration and avoiding Balkanisation of the country on linguistic or other similar considerations. The ideal of having one-third of High Court Judges from outside the State helps promotion of national integration and the preservation of a uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges should be transferred from the High Courts in their own interest to other High Courts. He was of the view that in many cases, judges continuing in the High Courts of their own State were likely to develop vested interests. . . Fresh appointments could certainly be made from outside the State. This should be done as a matter of policy so that there was no pick and choose. 373. Shri Hari Nath Mishra (Congress) was of the following view : Shri Hari Nath Mishra (Congress) mentioned that it had been agreed at earlier meetings that one-third of the Judges and the Chief Justice should be from outside the State. The need for such a policy arose not form any theoretical consideration but from the reality of the situation. He wished to project this need to the Law Minister and through the Law Minister to the Chief Justice of India. 374. Shri Bhogendra Jha (CPI) observed thus : Shri Bhogendra Jha (CPI) supported the idea of transferring Judges of High Courts outside their own State. . . He also observed that while members of the Committee belonging to the different parties had agreed that transfer and appointments of outsiders should be made, the idea should be propagated am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of national integration; regionalism will not come in, and also it would be in the interest of a caste-ridden society. That was the approach they had taken. I will go only into the recent past. Even my predecessor, Mr. Shanti Bhushan felt that a Chief Justice should be from outside on the same grounds which were urged by the Law Commission in its 14th Report. . . The policy is whether a Chief Justice should be from outside or not, and if so, whether the seniormost person based on the all-India seniority should be appointed wherever the vacancies occur, or any other mechanism has to be evolved which should be in the best interest of the society.... This very Bar Council - except one or two members who have changed; otherwise, the personnel are the same - said : Yes, the policy should be that the Chief Justice should be from outside. The other question that was posed by the Law Commission was question No. 12 which said : What is your view with regard to the suggestion that we should have a convention according to which one-third of the Judges of each High Court should be from outside the State ? This very Bar Council answered in the affirmative. (Rajya Sabha Debates : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing facts which may be extracted thus : It would become necessary in the very near future to evolve an all-Indian policy for appointments of Chief Justices in the various High Courts. The difficulties in taking any ad hoc decision on that question are of such grave magnitude that it would be impossible at this stage to appoint an outsider as a Chief Justice either of the Delhi High Court or of the Andhra Pradesh High Court. 383. It would appear from the contents of the note extracted above that the CJI was opposed only against any ad hoc decisions without evolving an all- Indian policy for appointment of CJs. He had deliberately remained silent on the question of the policy regarding transfer of CJs. 384. In his minute dated July 31, 1980 while expressing his opposition to the uniform policy the CJI clearly stated that he had an open mind; the relevant portion may be extracted thus : The heart of the matter however is whether, as a general all-India policy, a Judge of a High Court ought never to be appointed as the Chief Justice of that High Court. I am prepared to keep an open mind on this question because the pros and cons of the issue has still to be thrashed out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him even without his knowledge. A clear instance of this is to be found in the case of Justice K. B. N. Singh which has been fully clarified by the CJI in his counter-affidavit in Transferred Case No. 24 of 1981. As, however, this is a very sensitive matter we would not like to go into the details or comparative merit or demerit of the Policy but by and large we are absolutely confident that such a Policy would enhance the prestige of the judiciary, ensure its independence and make the working of the head of the judiciary in the State more efficient and generate a greater confidence in the people of the new State where he is transferred. 388. The only objection which has been pointed out against this policy is the language problem but that also does not appear to be an insurmountable obstacle because while laying down the policy the Government can start with transfers of CJs within the zones as recommended by the Law Commission which will minimise the language difficulty. In making the transfers, there would be no serious objection if the CJ is allowed to indicate his choice regarding the State where he would be prepared to be transferred and the same may be accepted as far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a uniform policy by which every CJ should be from outside the State, the Government can lay down such a policy by a Presidential Order. If that is done, there would be no just or lawful cause for the CJI to withhold his consent to implement such a uniform policy because once a policy is evolved and given effect to, the idea of making selective transfers would lose its significance and value and would perhaps be violative of Article 14 of the Constitution because selective transfers would always result in some sort of discrimination, for in each case, the CJI would have to justify the classification made by him. 391. It is true that neither Law Commission set up in 1958 nor the one set up in 1978 had totally agreed with the first limb of the Policy, i.e., transfer of CJs from one State to another so that each State has a CJ from outside although they did find in unequivocal terms that there was a sufficiently vocal section of the public favouring such a policy of transfers. This was perhaps because by that time all the various shades and aspects, mechanisms and methods of evolving such a policy had not been fully explored nor did the State policy till that time ripen into a wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely excludes discrimination which may result in cases of selective transfers. 395. Brother Venkataramiah has also expressed his view that the transfers proposed by the CJI, which were quite a number of them, were actually in aid and implementation of the Policy formulated by the Government and, therefore, even if there was no effective consultation, the transfers would be valid. We regret that we are unable to accept this view because it is the common case of all the parties that although the suggestion to evolve a policy has been mooted no such Policy has yet been evolved or finalised because even according to the Law Minister, the mechanism is yet to be determined which would have to be left to the Supreme Court. This is, further supported by the statement of the Law Minister which was produced by the Solicitor-General where the Law Minister merely says that the Policy view was put across to the CJI who expressed his opposition to all the CJs of the High Courts being from outside. The Government, however, acceded to the transfers proposed by the CJI as - (1) it was felt that not agreeing to these transfers may be construed as though the Government was departing from its view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment's idea of evolving a general policy to effect transfers of CJs in a manner which puts every High Court under the CJ from outside the State, is undoubtedly a very sound and acceptable policy as found by us. We have pointed out from the various reports discussed above that ever since the date of the Report of the SRC was given the idea of having Judges from outside the State was clearly mooted. Furthermore, while we are examining the Policy sought to be evolved by the Government, at the present moment we cannot shut our eyes to the stark and hard realities of life. Ever since the linguistic provinces came into existence as a result of the SRC Report, attempts have been made to see that the linguistic division of the State does not create disintegration of our big country which is the largest democracy in the world. In fact, lawyers, judges, politicians, jurists, members of the Bar and other statesmen have applied their minds and expressed themselves strongly in favour of the policy sought to be evolved by the Government. In view, however, of the changed circumstances, in our opinion, such a policy is not only proper but essential as being the prime need of the hour. We canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even so, if a CJ is from outside the State, the chances of his misusing his powers are reduced to the absolute minimum. We have pointed out that the power to formulate or evolve this policy clearly lies within the four corners of Article 222 itself which contains a very wide power conditioned only by consultation with CJI who is the highest judicial authority in the country. It is always open to the president, which in practice means the Central Government, to lay down a policy, norms and guidelines according to which the presidential powers are to be exercised and once these norms are followed, the powers of the President would be beyond judicial review. 403. We might also mention that as against policy transfer selective transfers of CJs to High Courts other than the one where they are working or may be appointed, contains the colour of discrimination and arbitrariness because however careful the CJI may be if he starts picking and choosing CJs from outside the High Courts the element of discrimination or arbitrariness cannot be reasonably excluded. On the other hand, if a general policy applying to all and sundry (CJs) is evolved by which every State would have a CJ from outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfers on wholesale basis would leave no scope for considering facts of each particular case cannot be read out of the context and have to be read in the light of the peculiar facts and circumstances of Sheth case (Union of India v. Sankalchand Himatlal Sheth, in which transfers were made by the Government not in pursuance of a policy or public interest but purely with political motives to punish Judges for sharing a particular ideology. This is, however, not the case here and therefore as we read the observations of Chandrachud, J. he has not held the policy of transfer to be not in public interest in order to promote national integration. 406. For the reasons that we have already given above, we are unable to agree with the observations where the learned Judge has said that interest of national integration is a moot point. We have already shown from the opinions expressed by high constitutional and legal authorities that a policy of having CJ in every High Court from outside is in great national interest and perhaps very necessary in order to curb and crush the fissiparous tendencies which seem to sway our entire country. Bhagwati, J. while adverting to this aspect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons nominated for appointment or Additional Judges who have not yet been made permanent, the policy can be fully worked out without any hitch or hindrance. 410. The next question that arises for consideration is as to how the two limbs of the policy, viz., (1) transfer of CJs from outside, and (2) recruitment of one-third of judges from outside the State at the initial level, can be effectuated. Here, we do not find any difficulty whatsoever. Article 222 confers an express power on the President to transfer a judge (which includes the CJ) from one State to another. This power is not circumscribed or hedged by any conditions or stipulations excepting that the CJI has to be consulted. In determining as to how this power can be exercised, the President undoubtedly possesses an implied power to lay down the norms, the principles, the conditions and the circumstances under which the said power is to be exercised so long as he does not overstep the limits or confines of the power enshrined under Article 222. Since the implied power lies with the President it is not at all necessary that this power should be regulated by a legislation or an Act or a rule or a bye-law or any other instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the four corners of the just exceptions indicated above and not beyond the same which form part of the Policy laid down by the President. 414. At the same time, the exceptions should not be so broadly construed as to destroy the effect and fruitfulness of the policy. 415. Another aspect of the matter is as to whether or not the policy is legally justifiable and is in public interest so as to be legal and constitutional. On this aspect of the matter unimpeachable material have been placed before us to show that right from the framing of the Constitution up-to-date public opinion has always favoured the transfer of judges as a matter of uniform policy. As late as 1949 when the Draft Constitution was made, Dr. Ambedkar, as already indicated, had expressed a pious wish the judges should be transferred to other States so that they can apply an independent approach and generate more confidence being above all local or parochial interests. 416. We must hasten to add that the President before formulating the Policy should consult the CJI and have his views because the laying down of the Policy would be under Article 222 and consultation with the CJI being a necessary concomita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jus Minister of Law, Justice Company Affairs, India, New Delhi - 110 001 March 18, 1981 My dear It has repeatedly been suggested to Government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be form outside the State in which that High Court is situated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction. 2. In this context, I would request you to - (a) obtain form all the Additional Judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and (b) obtain from persons who have already been or may in the future be proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough and ready, and an ingenious and scientific mechanism to achieve this end. 421. Let us assume that all parties agree that one-third of the Judges in each High Court should be taken from outside, which seems to be the absolute consensus that has emerged from the evidence produced by both the parties. The question is how is this objective to be achieved ? One method may be as suggested by some Commissions that each High Court should maintain a panel of members of the Bar and the Services who are suitable for appointment as Judges of the High Court and exchange these panels with the CJs of all High Courts. Before making the panel, it is manifest that the State Government also would have to be consulted, which is also the requirement of the statute. This is, however, a very complex and complicated procedure and will take quite a few years before the panel is formed. 422. So far as Mr. Seervai is concerned, he argued that this cannot be done. We are, however, unable to agree with him that merely because it may not be very easy to evolve this limb of the policy, it should be rejected as being impossible of performance. After all, eminent jurists like Justice Saiyid Fazl Ali, Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CJI at this stage either to agree with this proposal or to drop it. 425. We, therefore, fail to see what harm is done to the Judges. On the other hand, the circular provides an additional facility to the Judges who may like to go out of the State in accordance with the policy. It appears that in actual practice quiet a few of the Judges have given their consent. 426. Mr. Seervai vehemently contended that the tone and tenor of the circular amounts to pressurising the Judges and putting them under coercion to give their consent at the peril of their being dropped at the initial stage, The plea of coercion or undue influence is to be pleaded by the persons on whom undue influence or coercion is used. None of the Judges have either by any statement or affidavit complained that they had given their consent under duress. 427. Mr. Seervai submitted that Judges are not used to indulge in litigation and if they chose to remain silent, the lawyers can take up their cause and prove that duress and coercion has been practised on them. We are really amazed that such an argument has been advanced before us which completely ignores the elementary norms of law. Manifestly before the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent in which case in all probability the proposal would die a natural death. We are, therefore, unable to accede to the contention that the circular tries to interfere with the supreme authority of the CJI in the matter of consultation under Article 222. 430. Another circumstance that furnishes a complete answer to this problem is that no question of transfer is involved in the mechanism sought to be devised by the circular. The Additional Judges have only to be appointed for the first time in other High Courts and are not to be transferred. Even if the Judges concerned give their consent and are appointed in an outside High Court, they would not be transferee Judges and therefore not entitled to the facilities which are available to transferee Judges like compensatory allowance, visiting his home State every year, etc. Therefore, the entire argument stands on a pack of cards. 431. Lastly, the circular issued by the Law Minister is not mandatory but purely directory. It is open to the Judges to refuse to answer the queries made from them by the CJs in pursuance of the circular and no adverse inference can be taken against them, though the law will take its own course. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea of privilege taken by the Union of India. I am aware that my voice is a lone dissent but I am satisfied that I am in good company with my judicial conscience. Reasons for this Order will be given by me along with the Judgment rendered in the cases. 436. I now set out to give the detailed reasons which led me to dissent from the views taken by my learned colleagues. I had mentioned in my interim Order that mine was a lone voice of dissent but I felt consoled that I was in good company with my judicial conscience. 437. To begin with, in dealing with the question of privilege, we cannot view this important branch of law divorced from the socio-economic conditions of our own country nor can we overlook the special conditions - political, economic and social - prevailing in the largest democracy of the world. Any judicial reform however radical or meaningful it may be, must like a sage counsel be slow and gradual because it is the last refuge for those who seek justice from the courts of law. One of the most prominent distinctive features of the laws of our country on the question of privilege is that the doctrine of privilege is governed not merely by case- law but by statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. 441. A plain reading of these provisions would show that these provisions are expressed in a negative form which is the clearest possible proof of the fact that the legislature has incorporated a direct prohibition against the use of documents mentioned in the aforesaid provisions. 442. Thus, a disclosure can be allowed only in exceptional circumstances where there is no injury to public interest because public interest is always paramount to private interest., In fact, these provisions clearly contain four important attributes of the doctrine of disclosure : (1) public interest, (2) confidentiality, (3) candour, and (4) expediency. 443. A reading of these provisions would also show that the legislature seems to have laid the greatest possible emphasis on public interest and confidentiality aspects of these documents. I shall now refer to some of the leading decisions of this Court which have construed the doctrine of privilege as contained both in Section 162 of the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy.... In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs. It is, however, necessary to remember that where the legislature has advisedly refr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered. The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers. 447. These observations come very close to the matters in dispute contained in the secret correspondence sought to be disclosed because here also they dealt with the minute of the meeting of the Ministers, viz., the Law Minister, the CJI and the CJ, Delhi which form the foundation, though not an actual part of the advice tendered to the President. These documents were held to be fully privileged. Kapur, J. in a concurrent judgment in Sodhi Sukhdev Singh case, however, clarified the position thus : Thus the documents, which are protected from production, are those the production of which would be prejudicial to the public interests or those which belong to that class which as a matter of practice, are kept secret for the proper maintenance of the efficient working of the public service. 448. The learned Judge after summing up the entire English law on the subject observed as follows : Thus the law as stated in these old English cases shows that what was injurious to the public interest or prejudicial to the proper functioning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that there was no conflict between Sections 123 and 162 of the Evidence Act even on the interpretation sought to be put on the doctrine of privilege by the learned Judge. In this connection he observed thus : There is no conflict between Section 123 and Section 162 of the Act : the former confers a power on a head of a department to withhold permission from the stand-point of State Administration, whereas Section 162 recognizes the overriding power of a court in the interest of higher public interest to overrule the objection of privilege. 453. Finally, while laying down the working rules of guidance regarding matters of privilege, the learned Judge laid down the following guide-lines : Subject to the overriding power of the court to disallow the claim of privilege in exceptional cases, the following provide working rules of guidance for the courts in the matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State : (a) records relating to affairs of State mean documents of State whose production would endanger the public interest; (b) documents pertaining to public security, defence and foreign relations are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service.The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anesburgh observed as follows : As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected, have usually been public official documents of a political or administrative character. Yet the rule is not limited to these documents. Its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reasons for their non-production. 462. Thus, in the instant case the two-fold tests laid down by Lord Blanesburgh are fully satisfied because (1) the papers are in the nature of public official documents of administrative character, and (2) the disclosure of these documents will lead to serious injury to the public. 463. In Duncan case [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJ KB 406 : 166 LT 366 (HL)) the following observations were made : ... The rule that the interest of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. 467. The twin tests which flow from these observations fully apply to the facts and circumstances of this case. We are, therefore, unable to regard Conway case [1968] A.C. 910 : [1968] 2 W.L.R. 998 : [1968] 1 All E.R. 874(HL)) as having overruled the ratio in Duncan case. [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJ KB 406 : 166 LT 366 (HL)). On the other hand, even on the authority of Conway case [1968] A.C. 910 : [1968] 2 W.L.R. 998 : [1968] 1 All E.R. 874(HL)), the disclosure of the documents in question ought not to be allowed. Moreover, these observations clearly show that the principles enunciated by Lord Simon in Duncan case [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJ KB 406 : 166 LT 366 (HL)) were approved. It is true that the ratio in Duncan case [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJ KB 406 : 166 LT 366 (HL)) after having been approved was explained away and limited to cases where disclosure of documents was not in public interest and disclosure could be permitted only by striking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatever source and by whatever means should be immune from discovery. It is only thus that the board will obtain all the material it requires in order to carry out its task efficiently. Unless this immunity exists many persons, reputable or disreputable, would be discouraged from communicating all they know to the board. They might well be in fear not only of libel actions or prosecutions for libel but also for their safety and maybe their lives. 472. Taking the facts of this case at their face value, I do not see how it can help the argument of Mr. Sorabjee on the question of disclosure of the documents. In fact, this case also does not depart from the previous views taken by the House of Lords and Privy Council regarding the importance of public interest or injury to public interest in respect of the documents sought to be disclosed. This case, however, takes a step forward by insisting that the principles enunciated in Conway case [1968] A.C. 910 : [1968] 2 W.L.R. 998 : [1968] 1 All E.R. 874(HL)) would show that a just balance should be struck between the ground on which the Union of India claims privilege and the claim of the petitioners for disclosure. Applying the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary appears to be the case so far as the documents, which are the subject- matter of disclosure, in the instant petitions are concerned. These observations do not help the petitioners because they are based on a clear finding of fact that there was nothing remarkable about the documents in order to tilt the scale in favour of non-disclosure. It was also held that the affidavits did not clarify whether the claim of privilege was class- claim and not contents-claim. As already indicated, the documents in this case pertain to high official secrets revealed in the documents of high constitutional functionaries regarding matters which if disclosed would doubtless cause serious injury to the public and has in fact caused the most colossal damage not only to the Government but also to the judicial institution itself. 475. In Sankey case (1978 21 Australian LR 505 : 53 ALJR 11) the following observations were made : An explanatory memorandum and schedule relating to a meeting of the Executive Council held on January 7, 1975. It should be explained that when a matter is brought before a meeting of the Executive Council a minute paper is prepared; it sets out the advice tendered to H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompton Amusement Machines Ltd. v. Customs Excise Commissioners [1974] A.C. 405 : [1973] 2 All E.R. 1169, 1184 (HL)), Lord Cross of Chelsea while dwelling on the nature of confidentiality which is doubtless one of the aspects of privilege, observed as follows : (All ER p. 1184) 'Confidentiality' is not a separate head of privilege, but may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other. 480. Here also it was held that while dealing with the question of confidentiality the most material consideration would be whether privilege was claimed on the ground of public interest and the duty of the court is to balance the considerations of public interest against the injury which may be caused by disclosure and if it finds that the injury to public interest would be minimal, disclosure can be allowed. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Sodhi Sukhdev Singh, . 484. This Court in Shyamlal Mohanlal case ((Shyamlal Mohanlal v. State of Gujarat, has clearly held that the plea of privilege cannot be determined on the principles enunciated by the American Judges which could not apply to our country. This is particularly so, when the habits and tempers of our people, their outlook and vision, and their concepts and way of life are quite different from the ways of life of the American people. 485. In Shyamlal Mohanlal v. State of Gujarat ((Shyamlal Mohanlal v. State of Gujarat, this Court observed thus : In the United States of America where the immunity against self- incrimination is constitutional, the Fifth Amendment provides : No person... shall be compelled in any criminal case, to be a witness against himself. By judicial interpretation the rule has received a much wider application. The privilege is held to apply to witnesses as well as parties in proceedings civil and criminal : it covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction, or furnish a link in the chain of evidence, and to production of chattel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us : The privilege, when recognized, should therefore be subjected to the following limitations : (1) Any executive or administrative regulation purporting in general terms to authorize refusal to disclose official records in a particular department when duly requested as evidence in a court of justice should be deemed void. (2) Any statute declaring in general terms that official records are confidential should be liberally construed to have an implied exception for disclosure when needed in court of justice.(3) The procedure in such cases should be : A letter of request (like a letter rogatory) from the head of the Court to the head of the Department (accompanying the subpoena to the actual custodian), stating the circumstances of the litigation creating the need for the document followed (in case of refusal) by a reply from the Departmental head stating the circumstances deemed to justify the refusal; and then a ruling by the Court, this ruling to be appealable and determinative of the privilege. 489. The view of the author, therefore, fully reflects the summary of the decisions given by the American Courts on the question of privilege. It may be noticed that clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njury to public interest or national interest. 492. In fact, the correct legal position seems to be that whereas mere expediency may not be a ground to claim privilege so as to avoid production of a document which, if produced, may defeat and defence, where the documents consist of highly confidential matters in respect of constitutional functionaries like Chief Justices or High Court Judges, the Law Minister, the President of India, C.B.I., I.B. and such other Departments are concerned, the question of public injury, which may be caused, becomes a decisive factor in upholding the plea of privilege. The court is, however, not powerless to hold its own enquiry in order to test the bona fide of the plea of privilege. One form of such an enquiry may be, as pointed out in the cases referred to above, the inspection of the documents themselves by the court before disclosure. If after inspection the court finds that the plea of privilege is well grounded and its disclosure will lead to great public injury, it will be justified in upholding the plea of privilege. 493. It is true that recent English decisions have made a slight departure from the consistent and somewhat conservative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining matters of high politics, diplomatic relations or such secrets would undoubtedly be privileged. Thus, so far as this case is concerned it fully supports the position taken by the Union of India in claiming the plea of privilege in respect of the documents concerned. 498. In D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 : [1977] 2 W.L.R. 207 (HL)) it was held that the administration of justice was a fundamental public interest though not an exclusive public interest. 499. Although the facts of this case are quite different from the facts of the present case, yet the case cited above undoubtedly recognised administration of justice as a fundamental public interest. Once this is so, then by the force of Section 123 of the Evidence Act, disclosure cannot be permitted and the Government would be entitled to take the plea of privilege. 500. In none of these cases, the documents in respect of which privilege was claimed related to top secrets of high officers involving Government decisions on important policy matters relating to higher judiciary as in the present case. In these circumstances, these cases are not of much assistance to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. That unfortunately not having been done, it follows that both appeals should be dismissed. Lord Fraser spoke in the same strain and held that confidentiality was not a separate head of privilege but may be a very material consideration to bear in mind when the question of privilege is raised. 502. Thus, what the House of Lords held was that the element of confidentiality in the documents was not so acute or sensitive as to create any public interest. On the other hand, public interest itself in the circumstances required disclosure. This case, therefore is of no assistance to the petitioners because the facts of the present case are essentially different from the facts of the case. In the instant case, after inspection of the documents it cannot be said that only private interests were involved and that there was no injury to public interest. The disclosure of the confidential notes and correspondence between three very high constitutional functionaries, viz., CJI, Law Minister and the CJ, Delhi High Court containing matters on which no public debate could be allowed were undoubtedly matters of great public interest. On the other hand, the interest of Justice Kumar was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrated, but only then, may the court proceed to a balancing process. 504. It was thus held that the documents should be produced for inspection by the House of Lords. As the said case was not one where without inspection of documents it was possible to decide whether the balance of interest lay for or against disclosure, after inspecting the documents the majority of the Lords arrived at a finding of fact that none of the documents contained such confidential matters as could form the basis of a plea of privilege. Lord Wilberforce, however, dissented and held that the Minister's certificate would amount to public interest immunity, and the documents could not be inspected. 505. This case also has absolutely no application to the facts of the present case because this Court after hearing the arguments of the parties on the issue of privilege by an interim order held that the court was entitled to inspect the documents and after inspecting the documents I am clearly of the view that having regard to the magnitude of the matter, the heavy stakes involved, the disclosure would amount to denigration of not only the judiciary but also the other constitutional functionaries wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they all related to purely commercial transactions and did not contain any constitutional colour or any element of affairs of the State. The same cannot be said so far as the documents in the instant case are concerned. These documents are not only of great public importance but are directly concerned with the affairs of the State in that the Council of Ministers while giving advice to the President for not extending the term of Justice Kumar had expressly relied on these documents though it has not been shown to our satisfaction that these documents form part of the Memorandum of Advice tendered to the President. In such a case, the documents would have been beyond any enquiry under Article 74(2), apart from the question of the application of Sections 123 and 124 of the Evidence Act. 509. Another case relied upon by the petitioners was Neilson v. Laugharne [1981] 1 All E.R. 829 (CA)). Lord Denning approached the question with his usual ingenuity and observed as follows : This modern development shows that, on a question of discovery, the court can consider the competing public interest involved. The case is decided by the court holding the balance between the two sides. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Nor can the decision to admit or exclude be safely left to those who are themselves charged with misconduct; (nor for that matter can it be left to their political associates or even their opponents). 512. With due respect to the learned author, the principles have been rather broadly stated and do not fit in either with the democratic set-up of our country or with the spirit of our Constitution. For instance, Cabinet decisions, however wrong or proper they may be, are, undoubtedly secret documents and if any such document forms part of the advice tendered to the President then there is a clear constitutional mandate by virtue of Article 74(2) preventing the court from embarking on any inquiry into these documents. Thus, the question of disclosure cannot arise in such cases and the observations of the author become wholly inapplicable to the situation contemplated by our Constitution and the statutory laws. In these circumstances, therefore, I cannot accept the view of the author, extracted above. 513. It would thus be seen that even from English decisions, it is clear that the court itself should prevent disclosure of documents whose production will be contrary to public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e we become as advanced as the United States of America. Even though the recently decided English cases may have taken a much broader and a more liberal view, the Founding Fathers of our Constitution had before them the old view and this Court has consistently followed the English decisions so far as the question of privilege is concerned. (2) While neither in England, Australia nor America there is any codified law laying down the principles and the grounds on which privilege can be claimed, in India we have Sections 123 and 124 of the Evidence Act which govern the conditions under which a plea of privilege can be allowed or disallowed. Another law which affects the question of privilege is Section 162 of the Code of Criminal Procedure (See Editor's note on p. 440) which has also to be read in conjunction with Sections 123 and 124 of the Evidence Act. 515. Apart from these two sections there is also a constitutional provision which is enshrined in Article 74(2) under which no enquiry can be made by any court in respect of the advice tendered by the Council of Ministers to the President. In the instant case, the order impugned has been passed by the President on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions widened the horizon of Article 21 so far as the inspection of the documents by the court is concerned, but if after inspection of the documents the Court is satisfied that the tests laid down by this Court in several cases are not fulfilled then the plea of privilege must be upheld. 518. Thus, after a full and complete analysis of the various factors indicated above, it is established beyond doubt that so far as this Court is concerned it has chosen to follow the principle of English law with suitable adjustments and modifications in determining the plea of privilege under Sections 123 and 124 of the Evidence Act, This is, as it should be, because as pointed by Kapoor, J. in Sodhi Sukhdev Singh case (State of Punjab v. Sodhi Sukhdev Singh, that since the Evidence Act was enacted during the British rule and we have generally adopted the English system in procedural matters, we should not depart from the basic and essential principles of interpretation as laid down by the English law. I, however, respectfully agree with Subba Rao, J. that while construing Sections 123 and 124 and applying the principles of English law, we must do so against the background of the Socialist S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that so far as Defence secrets or good neighbourly relations with other countries are concerned, there is complete bar to the disclosure of these matters or documents relating to these matters which are clearly covered by Section 123 or Section 124 of the Act. 520. There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued. The high sounding concept of independence of judiciary or primacy of one or the other of the constitutional functionaries or the mode of effective consultation are matters of academic interest in which our masses are least interested. On the other hand, they are mainly concerned with dangerous forces at work and evils reflected in economic pressures, inflationary tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing, bread and butter, and above all the serious problem of unemployment. 521. It is only a sizeable section of the intellectuals consisting of the Press and the lawyers who have made a prestigious issue of the independence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last two centuries such documents have always been treated as secret, confidential and privileged and until today no disclosure of such documents has ever been allowed by any court. Thus, in my opinion, any disclosure of the contents of the documents would be extremely derogatory to the high constitutional position that these constitutional functionaries enjoy and would in the long run prove counter-productive and destroy the sacrosanct consultative process as envisaged by the Constitution. (b) If disclosure is allowed, it will bring into disrepute the judicial institution itself and lead to a continual process of washing of dirty linen and perpetual mud-slinging by allowing the so-called wronged persons to make allegations and counter-allegations against the Government and the CJ concerned as was sought to be done in this very case. It is true that even after the contents of the documents are disclosed, the petitioners cannot be allowed to travel beyond the material disclosed by the documents but even that material could be exploited and affect the secrecy of such high constitutional officers and raise a controversy which will ultimately lead to opening a Pandora's box w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps in due deference to the maintenance of the purity of the great institution of justice. I cannot help commending the conduct of Justice Ismail who actually resigned and chose to quit his office instead of pursuing the matter further in the larger interest of the purity of administration of justice. The life of a judge is that of a hermit and he must inculcate a spirit of self-sacrifice and should take his profession in this holy spirit. (e) The subsequent events following the disclosure of the documents which have been fully published by the Press and other media clearly show that there has been a serious character assassination of a high constitutional functionary for merely expressing his opinion in a very frank and honest manner and that too behind his back. The contents of confidential notes and letters have been exploited for their personal ends by interested parties. Thus, the apprehension and danger which I had predicted from disclosure has come to be true and henceforward there would be hardly any head of a Department who can function properly or effectively with the sword of Damocles hanging over his head. No high authority would now venture to record adverse annua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions of the country, posing a very serious problem to the Central Government and the public services. 524. The Solicitor-General made a feeble attempt to argue before me that since I have dissented from the majority view and upheld the plea of privilege I should not deal with the contents of the documents in my judgment. This argument, which appears to me to be somewhat extraordinary, cannot be accepted because the decision of the majority amounts to the law laid down for the whole country under Article 141 of the Constitution and is as such binding on me as on others. As a result of the majority decision, the documents disclosed form part of the record and if I shut my eyes to these documents merely because I have dissented from the majority view, it would perilously amount to being subversive of judicial discipline. I have, however, carefully waded through the documents and I do not think that much can be made of the contents and recitals in the documents. These are my reasons for upholding the plea of privilege taken by the Union in the cases of Mr. Kumar and Mr. K. B. N. Singh. 525. A careful perusal of the letters written by the CJ, Delhi High Court to the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im a contrary version. In my opinion both of them did not disclose the names because the Judges or the lawyers concerned must have given the information in confidence and they would have been seriously embarrassed if their names were disclosed. (2) These views were put before the Central Government and it was open to the President to accept one view or the other. The President chose to accept the view taken by the CJ, Delhi more particularly because he was in a position to have firsthand information both regarding the reputation and working of the Additional Judge. 527. In these circumstances, it cannot be said that the action of the President was tainted by malice or that there was no effective consultation. This aspect of the matter has been elaborately dealt with by my Brothers Bhagwati, Desai and Venkataramiah, JJ. with whom I am in general agreement. 528. I might just state that even if the documents were not disclosed, the conclusion would have been the same because in the affidavits it was not disputed that the two CJs had taken a contrary view regarding the doubtful reputation of Justice Kumar, nor was it suggested that CJ, Delhi had any ill will or animus again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an appointment is a kind of an emergency appointment which is to last until the temporary increase or arrears are disposed of, (2) where by reasons of heavy arrears of work it becomes necessary to appoint an Additional Judge, the appointment is made under Article 224. 531. The Article, therefore, contemplates only a tenure appointment to meet a particular contingency and is not meant to be a permanent feature so as to form a training base for recruiting judges from the training base to the permanent cadre. This point need not detain us any further in view of the statement made by Mr. Mridul on behalf of the Law Minister that it has now been decided as a matter of policy by the Government not to appoint Additional Judges for a period of less than one year in special cases and two years normally. If this is done in further, then the spirit of the Constitution would be amply fulfilled and the controversy would be set at rest. 532. A more important feature is that the nature of the appointment under article 224 is a pure tenure appointment for a fixed period and once the period expires, there is no question of extension of that period or reappointment. In other words, once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the constitutional functionaries mentioned above. In fact, a close and careful perusal of the correspondence between all the constitutional functionaries, (CJ, Delhi, CJI, and the Law Minister) would clearly show that the role of the Law Minister has been very fair and just from start to finish. The Law Minister insisted on the materials before taking a decision against Mr. Kumar. These materials were supplied to the Law Minister by the CJ, Delhi. He had also discussions with the CJI. Even thereafter the Law Minister wanted to plug all loopholes in order to satisfy himself fully before taking a final decision in the matter, and that is why he wrote to the CJ, Delhi to furnish a complete data and better particulars which was done by him (CJ, Delhi), through his letter dated May 7, 1981. 536. It is obvious that the CJ, Delhi expressed his desire that the full material which was supplied to the Law Minister may not be sent to the CJI but that was perhaps because the CJ, Delhi had oral discussions with the CJI in respect of all relevant materials. The Law Minister also took care to ignore the CBI reports against Mr. Kumar because he wanted to proceed purely on legal and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s desire to the Law Minister to keep the contents of his letter dated May 7, 1981 secret and not to place the same before the CJI. Brother Bhagwati, J. has himself pointed out that CJ, Delhi had given cogent reasons for requesting the Law Minister not to disclose the contents to CJI and yet in his concluding portion while not doubting the bona fide of the CJ, Delhi, he seems to suggest that he (CJ, Delhi) ought to have shown greater courage of conviction so as not to have been cowed down by the apprehension that CJI might feel offended and in this connection observed as follows : (SCC p. 329, para 102 supra) We must, of course, observe that in our opinion, howsoever strong and cogent might be the three reasons given by him, the Chief Justice of Delhi should never have asked the Law Minister not to place his letter dated May 7, 1981 before the Chief Justice of India.... He should not have bothered whether by his action in putting the facts on record in the letter dated May 7, 1981 the Chief Justice of India would be offended and his relations with the Chief Justice of India would be spoilt. 539. Perhaps in making these observations, with great respect, brother Bhagwati, J., did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of power is most laudable and beyond criticism. 544. For these reason, therefore, I am unable to agree with the observations made by brother Bhagwati, J. on this aspect of the matter only. 545. As regards the documents pertaining to Justice K. B. N. Singh's case which have been disclosed I shall discuss them while dealing with Transferred Case No. 24 of 1981. Transferred Case No. 24 of 1981 546. We now propose to deal with the case of D. N. Pandey and others in which Justice K. B. N. Singh, Chief Justice of Patna High Court has now been transposed as petitioner 3. All the connected petitions in respect of the transfer of Justice K. B. N. Singh from Patna to Madras High Court involve common points. The petitioner, Justice K. B. N. Singh was a practising Advocate of the Patna High Court and was appointed a Judge of the said High Court on September 15, 1966 and was made permanent Judge from March 21, 1968. Thereafter, he was appointed acting Chief Justice of the Patna High Court for a short while and as permanent Chief Justice on July 6, 1976. He was administered the oath of office on July 19, 1976. Since then, the petitioner continues to be the permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a position to leave Patna without the risk of her life and also mentioned other circumstances and difficulties and requested that his transfer may not be insisted upon. The CJI is alleged to have told him that he was making a note of these circumstances. Three/four days later the petitioner came to Delhi and called on the CJI and told him of his acute and insurmountable personal difficulties to which reference had been made by him during his telephonic talk with the CJI. The petitioner was with him (CJI) for about 10-15 minutes at his residence but he found the CJI absolutely non-committal in respect of his transfer. The petitioner informed the CJI that he might be given a chance to remove any wrong impression that may have been created in his mind. The CJI, however, did not put any question or material to the petitioner. 550. The petitioner alleges that his transfer was notified without his previous consent nor did he give his consent, nor was he even consulted in any manner about his transfer to Madras. The petitioner further submits that no reasons, grounds or material necessitating or justifying his transfer from Patna to Madras were ever disclosed to him or discussed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 553. As a plea for disclosure of the documents in the nature of correspondence which led to the transfer of the petitioner from Patna to Madras was also prayed for, a counter-affidavit was filed by Shri T. N. Chaturvedi, Home Secretary opposing the disclosure and taking the plea of privilege under Sections 123 and 124 of the Evidence Act. The court by a majority of 6 : 1, as in other cases, in this case also overruled the plea of privilege and directed disclosure of the documents concerning the correspondence but omitting the notes and some minutes which fell within the ambit of Article 74(2) of the Constitution. The Hon'ble CJI, who is respondent 2, filed his counter-affidavit on September 29, 1981, as directed by us, where he denied or rebutted most of the allegations of fact made by the petitioner in his affidavit. The petitioner filed another rejoinder on October 16, 1981 to the counter-affidavit of the CJI. 554. So far as the CJI is concerned, he admitted the fact that he visited Patna in February 1980 but denied that he had gone there only for the purpose of inaugurating the Rotary International Conference. He averred that he visited Patna in the exercise of his offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther admitted that the petitioner was at his residence on January 8, 1981 at 7.30 p.m. and during their discussion the question of his mother's advanced age and illness also came up which was the only personal difficulty stressed by him (petitioner). The CJI told him that he was unable to agree with him because there were other dependable persons in the family, including his brother S. B. N. Singh, who could look after his mother. The CJI also states that the petitioner gave him an impression that perhaps some complaints may have been made against him to the CJI which he would like to remove, on which the CJI assured him that he did not believe that his conduct was in any way blameworthy but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Other matters were also mentioned by the petitioner to the CJI which have no direct bearing on the issue. 557. In para 5 of his counter-affidavit the CJI has averred that there was full and effective consultation between him and the President on the question of the transfer of the petitioner from Patna to Madras and that every relevant aspect of that question was discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CJI. As the connotation of the word 'consultation' has now been well settled by a long course of decisions of this Court, it is not necessary for us to multiply authorities on this issue. We shall, therefore, refer only to those decisions which lay down complete and objective test for determining what constitutes effective consultation in a particular case. To begin with, we shall start with Sheth case (Union of India v. Sankalchand Himatlal Sheth, which is the only decision directly in point and where the matter was discussed fully covering all shades and aspects of this important question. Before referring to that case a few introductory remarks may be necessary. 562. We have already indicated above that on an interpretation of Article 222 the proposal for transfer of a Judge (which includes Chief Justice) from one High Court to another may emanate either from the President or from the CJI. Although according to the Memorandum which was produced before us, the practices is that the proposal is to emanate from the President through the law Minister but, as we have already pointed out that the Memorandum cannot override the provisions of Article 222 being only in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the President consults the Chief Justice of India.But there can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which alone he nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust forward ever possible material to the Chief Justice so that he is in a position to give an effective opinion. 565. Bhagwati, J. (one of us) agreed entirely with the observations extracted above. 566. In an earlier Constitution Bench decision of this Court in Chandramouleshwar Prasad v. Patna High Court while dealing with the intent and purpose of Article 233, the principles of which equally apply to consultation under Article 222, Mitter, J. observed thus : (SCC p. 63, para 7) Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion... Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter-proposal in his mind which is not communicated to the proposer the direction to give effect to the counter- proposal without anything more, cannot be said to have been issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this process is fully complied with, the consultation becomes full and effective and not formal or unproductive. (6) That sufficient opportunity should be given to the authorities concerned to express their views so as to tender advice as deliberation is the quintessence of consultation. (7) After the data, facts or materials are placed before the consultee and the consultant, there should be a full and complete application of minds in respect of the subject to enable them to reach a satisfactory conclusion. In other words, the two minds must be able to confer and produce a mutual impact on the identical facts which would constitute both the source and the foundation of the final decision. (8) The CJI owes a corresponding duty both to the President and to the Judge who is proposed to be transferred to consider every relevant fact before tendering his pinion to the President. (9) Before giving his opinion the CJI must take into consideration all relevant facts and should informally ascertain from the Judge is he has any personal difficulty or any humanitarian ground on which his transfer is proposed to be made and having done so, must forward the same to the President. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Kerala and that he, Shri K. B. N. Singh, may have to go to Madras. 573. Another conclusive fact which inevitably follows from the aforesaid two averments is that even when the CJI sent the proposal dated December 20, 1980 of the transfer of the petitioner from Patna to Madras and that of Justice Ismail from Madras to Kerala, there was neither any talk or discussion nor any consultation with the petitioner. We have highlighted this important fact because from the observations extracted above one of the essential ingredients emphasised by this Court and even by the CJI himself was that there should be a communication of ideas before the proposal of transfer emanates. We shall elaborate this aspect a little later. 574. According to the petitioner he was told by the CJI on telephone that he was to be sent to Madras in pursuance of a Government policy. The CJI in his counter-affidavit in para 2(g) stated that he did not merely indicate Government policy but also stated that it was necessary to appoint and experienced and senior CJ in place of Justice Ismail. In the circumstances, therefore, we would prefer the statement of the CJI to that of the petitioner particularly in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also for the CJI to have placed the entire facts, data, difficulties and viewpoints mentioned to him by the petitioner, before the President. Even if the CJI was not impressed by the difficulties expressed by the petitioner the materials and data given to him either orally or in writing had to be communicated to the President because the possibility of the President taking a different view cannot be reasonably excluded. 578. According to the averments made by the petitioner in para 8 of his second affidavit, he was not with the CJI for a period of more than 15 minutes. He further denied that apart from his mother's advanced age and illness no other facts were mentioned before the CJI. According to him, he had told the CJI that being the eldest son it was a sacred obligation to keep his mother with him and having regard to the close attachment with her, he could not leave her with any of his brothers or other members of the family which was divided and partitioned. It may be relevant to note that in para 9 of his first affidavit the petitioner merely stated that he told the CJI of his acute and insurmountable personal difficulties without detailing them. He also admits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsulted about his transfer to Madras. The consultation referred to by the CJI is obviously to the telephonic talk on January 5, 1981 and the personal meeting between them on the evening of January 8, 1981. 580. These are the points of convergence on which by and large there does not appear to be any serious controversy and even if there is any, we have preferred to rely on the affidavit of the CJI as in the normal course of business we must, so long as the law permits. 581. The most crucial averment by the CJI which forms the bulwark of the essential ingredient of effective consultation is to be found in para 5 of his counter-affidavit which runs thus : I deny the statement in paragraph 13 of the affidavit of Shri K. B. N. Singh that his transfer to Madras was made without effective consultation between me and the Government of India. There was full and effective consultation between me and the President of India on the question of Shri K. B. N. Singh's transfer from Patna to Madras as the Chief Justice of the Madras High Court. Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer.... Every r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given any idea or inkling about his being transferred to Madras High Court. Admittedly, for the first time the petitioner was informed by the CJI over the telephone on January 5, 1981. This was followed by a meeting and detailed discussion by the CJI with the petitioner at the former's residence in Delhi on January 8, 1981 at about 8.00 p.m. 583. The fact that before the proposal recommending the transfer of Justice K. B. N. Singh to Rajasthan or to Madras, there was no consultation between the CJI and the petitioner, conclusively proves that one of the first ingredients of the consultative process, viz., consultation by the CJI with the proposed transferee should always be held as a first step towards making the consultation constitutionally effective was not observed. This was held, as extracted above, by CJI in Sheth case (Union of India v. Sankalchand Himatlal Sheth, where he has gone to the extent of holding that if there is no such consultation before the transfer, then the transfer becomes unconstitutional. This, therefore, appears to be the first constitutional infirmity in the consultative process as contemplated by Article 222. 584. This now brings us to January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the CJI himself even if he had disclosed or placed all the materials before the Law Minister, he ought to have been given sufficient time for deliberation over the matters so as to be able to make up his mind, whether to agree or disagree with the CJI, and to advise the President accordingly. It may be that the personal difficulties may not have weighed with the CJI but the possibility of the Law Minister being impressed by them cannot be excluded. But as things stood, we find that the Prime Minister had already signed the file relating to transfer on January 9, 1981 and it can safely be presumed that the file must have been sent by the Law Minister to the Prime Minister either some time in the morning of 9th or late at night on 8th. This would leave no time at all to the Law Minister or the Prime Minister to deliberate on the various personal issues raised by the petitioner in his discussion with the CJI. Indeed, if prior to sending the formal proposal recommending the transfer of the petitioner the CJI would have taken the precaution of ascertaining his views there would have been sufficient time for the Law Minister or the President to deliberate. 586. It was strongly urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances discussed above the consultative process as contemplated by Article 222 is clearly vitiated which renders the order impugned passed by the President constitutionally invalid. 590. We must hasten to add that we have taken the greatest possible care to see that no finding is given or observations made by us which may either directly or indirectly cast any kind of aspersion on the recitals in the counter-affidavit of the CJI nor is there any circumstance proved in this case which may amount to such an aspersion. As already observed by us we have accepted the affidavit of the CJI in toto giving the due respect that it deserves. We have decided this case purely on the constitutional infirmities present in the consultative process and that too on the basis of the observations made and the decision given by the CJI himself in Sheth case. (Union of India v. Sankalchand Himatlal Sheth, . 591. The last point of law that was urged by the petitioner was that the transfer was constitutionally invalid because one of the essential conditions of Article 222 had not been fulfilled in this particular case. It was argued that Article 222(2), which is extracted below, requires a Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 594. We are fortified in our view by a decision of this Court in Collector of Customs v. Digvijaysinhji Spinning Weaving Mills Ltd. where Subba Rao, J. (as he then was) made the following observations : The High Court in effete drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. 595. An identical view was taken in Emperor v. Sibnath Banerjee 1943 AIR(FC) 75 : 1944 FCR 1 : 211 IC 241). In the instant case in view of our clear finding that the essential ingredients of effective consultation as required by Article 222 not being proved, the question of drawing a presumption under Section 114, Ill. (e) of the Evidence Act does not arise. 596. For the reasons given above we hold that the Order of the President transferring the petitioner, Justice K. B. N. Singh from Patna to Madras is constitutionally invalid and we hereby quash the notification dated January 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd justified that some effective steps should be taken very early in this direction. 2. In this context, I would request you to - (a) obtain from all the Additional Judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and (b) obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts. 3. While obtaining the consent and the preference of the persons mentioned in Paragraph 2 above, it may be made clear to them that the furnishing of the consent or the indication of a preference does not imply any commitment on the part of Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given. 4. I would be grateful if action is initiated very early by you and the written consent and preferences of all Additional Judges as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petition No. 882 of 1981 in Delhi High Court), Transferred Case No. 21 of 1981 (Shri Kalra's Writ petition No. 636 of 1981 in Delhi High Court) and Transferred Case No. 22 of 1981 (Shri Iqbal Chagla's Writ Petition No. 527 of 1981 in the Bombay High Court). Excepting the Transferred Case No. 21 of 1981 where only short-term extensions are challenged, in the other three cases both the actions have been challenged. 603. According to the petitioners both the aforesaid actions of the Union Government forming part of a scheme constitute a direct attack on the independence of the Judiciary. Which is a basic feature of our Constitution, and being illegal and unconstitutional are liable to be and deserve to be quashed or struck down. As regards Circular letter it is pointed out that it is in two parts : (i) in relation to sitting Additional Judges in all the States of India (except North-Eastern States) it seeks to obtain their consent in substance to their transfer as Permanent Judges to States other than their own and (ii) in relation to the proposed appointees (either from the Bar or Services) for initial appointment (either as Additional or Permanent Judges) it seeks to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistration of justice and is subversive of judicial independence; moreover, the consent is sought to be obtained under threat, coercion and duress and also in advance and in abstract and the same would be no consent in law. As regards the proposed appointees it introduces an additional qualification for being appointed as Additional or Permanent Judge not warranted by the Constitution. Fourthly, it is contended that the said statement in para 3 of the Circular letter also shows that there was no justification for writing the said letter at all and the same was written mala fide for a collateral purpose, namely, to bypass Article 222 and confront the Chief Justice of India with a fait accompli when the proposal to transfer such Judge would be forwarded to him; further to exercise the power of appointing Additional Judges not for the purpose for which that power has been conferred but for the purpose of carrying out the so-called policy of the Government is also mala fide in the sense that the power is being exercised for a collateral purpose foreign to the purpose indicated in article 224. Fifthly, the petitioners have contended that the Circular letter, under which absolute powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Permanent Judges of another High Court or in the appointments of the Members of the Bar practising in one High Court as Additional or Permanent Judges of another High Court pursuant to the consent obtained under the said Circular letter, the consultation with the Governor of that other State and particularly with the Chief Justice of that other High Court would be illusory and an empty formality and as such the said Circular letter is violative of Article 217 of the Constitution. For these reasons the petitioners have prayed for the quashing of the said Circular letter as also of the consent, if any, obtained thereunder, as being illegal, unconstitutional and void and its withdrawal, non-use and non-implementation by the Government. 604. As regards short-term extensions for three months, six months or a year granted to sitting Additional Judges upon the expiry of their initial term, which have become a frequent phenomenon after the issuance of the Circular letter dated March 18, 1981, the petitioners have contended that such short-term extensions are directly subversive of the independence of Judiciary and not contemplated by the Constitution. According to the petitioners the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven such undertaking to agree in advance to a transfer (or even to accept fresh appointment) to other High Courts as a Permanent Judge also involves similar breach of faith with that Judge; such departure and breach of faith amounts to a clear abuse of power and the purported exercise of the power in that manner would be illegal and void. So also the claim made by the Government that Article 224(1) only fixes the maximum period of two years at a time, that the article does not limit the discretion of the Government in the matter of the period for which an Additional Judge can be appointed except in regard to the ceiling of two years, and that the appointment can be for a shorter period and that period is not justiciable is untenable in law and clearly wrong because, apart from involving an unjustified departure from the well recognized and established practice, it introduces an element of insecurity of tenure having serious repercussions on the independence of Judiciary and also undermines people's confidence and faith in it. 605. It may be stated that the petitioners have cited specific instances of Additional Judges having been granted short-term extensions for three mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fulfilment of either one or the other or both the conditions in a High Court that the President can appoint duly qualified persons to be Additional Judges of that Court for such period not exceeding two years as he may specify, but if the said conditions are not fulfilled and the objective facts unmistakably demonstrate that the increase of business is not of a temporary character but is a permanent increase every year or that the arrears have increased and accumulated to an appreciably disturbing level with no reasonable prospects of substantially reducing the same over a period of years, the President cannot resort to Article 224(1) but has to increase the permanent strength by making permanent appointments under Article 217. In any case Additional Judges cannot be appointed while keeping permanent posts vacant as is happening at present frequently. The petitioners have further submitted that in view of undisputed data of the regular increase in the normal business of almost all High Courts and the mounting arrears therein - a reality being within the knowledge of the President - the decision to keep a large number of sitting Judges as Additional Judges would be arbitrary and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry with the President and such discretion cannot be controlled by judicial review by issuance of a mandamus and he is not entitled to any relief. 608. As regards the impugned circular letter it is contended that it does not deal with transfer of sitting Additional Judges or of the proposed appointees from one High Court to another nor does it seek to obtain consent for such transfer but in relation to sitting Additional Judges it seeks to obtain their consent for being appointed as permanent Judges to another High Court and in relation to the proposed appointees it seeks to obtain their consent for their initial appointment (either as Additional or Permanent) to a High Court other than their home-State High Court and the action proposed to be taken thereunder is for purposes of Article 217 of the Constitution; it is the case of the contesting respondents that when an Additional Judge on the expiry of his initial term or extended term is appointed as a Permanent Judge it is a fresh appointment by warrant under Article 217 and there is no question of any transfer being involved in such a case and obviously in the case of a proposed appointee (either from the Bar or Services) when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the policy of having one-third of the Judges of a High Court from outside that the circular letter has been issued and it is a preliminary step in the direction of obtaining and collecting data and information from persons who would be willing to get appointed in other High Courts so that such information could be made available to the Chief Justice of India as also to the State authorities and the Chief Justices of the concerned High Courts for effective consultation as envisaged in Article 217 and as such the circular letter is perfectly legal and within the authority of law. It is denied that the circular letter confers unbridled or unguided power on the Executive to pick and choose certain Judges for being transferred or shifted to other High Courts; it is pointed out that such a contention is wholly misconceived for two reasons, namely, that the letter does not speak of transfers at all but appointments to other High Courts and secondly it cannot arm the Executive with any powers, for whatever powers the Executive has are derived from the provisions of the Constitution and that the Law Minister's statement in the Parliament on April 16, 1981 has to be understood in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent in the vacancy in a permanent post, a fresh appointment is involved, and the consultative process envisaged in Article 217(1) is attracted; in other words he is in the same position as a proposed appointee for initial appointment and the same position obtains if it is intended to make him a permanent Judge in some other High Court. It is further contended that the provisions of the concerned articles being very clear and unambiguous no convention or practice that might have grown in the matter of appointment of Additional Judges and confirming them as permanent Judges (which is denied) can alter or affect the interpretation of the said provisions. Even an undertaking of the type indicated by the petitioners if obtained from a member of the Bar while appointing him as an Additional Judge cannot affect the true meaning and construction of the concerned provisions. It is further contended that assuming (without admitting) that an Additional Judge of a High Court gives the kind of undertaking mentioned by the petitioners, particularly of the type that is said to be usually obtained from him in the Bombay High Court, no illegality takes place in asking him if he would agree to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitting Additional Judges in various High Courts, is being challenged and the first question raised by the contesting respondents relates to the locus standi of the petitioners, who are legal practitioners in Allahabad, Bombay and Delhi High Courts, to maintain their petitions seeking relief against these two impugned actions. In my view the question of locus standi of the petitioners in these cases has become academic inasmuch as admittedly in the writ petition filed by Shri Tarkunde in Delhi High Court (being Writ Petition No. 882 of 1981) Mr. Justice S. N. Kumar (as he then was), impleaded as a party-respondent, has supported the challenge and sought reliefs in respect of these impugned actions and as such the challenges made will have to be gone into and decided by this Court. In the case of Dwarkadas Shrinivas v. Sholapur Spinning Weaving Co. Ltd. the constitutionality of the impugned Ordinance 2 of 1950 as well as of the Act 28 of 1950 which replaced it, whereunder the management of the mills was taken over and run by the directors appointed by the Central Government, was challenged by Shri Dwarkadas Srinivas (plaintiff), a preference share- holder of the Company and he als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garded as 'person aggrieved' by the two impugned actions, which really affect, if at all, the sitting Additional Judges, who would be the aggrieved persons and it is not as if they are under any disability to approach the Court for redress, as is shown by the fact that one of them has done so and supported the challenge. It is contended that though as practising lawyers either in their individual capacity or as representing some of the Lawyers Associations the petitioners may be professionally interested in having a fearless and independent judiciary for proper administration of justice that by itself is not sufficient to give them the 'standing' to prosecute the petitions for the reliefs sought, which really concern the sitting Additional Judges and not the lawyers. It is further submitted that even in 'public interest litigations', (usually called 'public injury cases') though a liberal approach is adopted by the Courts to reach all forms of injustice, the personal injury test is not ruled out but at times the test of 'sufficient connection' or 'special interest' is applied but in the instant case the petitioners neither qualitative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord Denning's observations on the Attorney-General's standing in the well-known case of the attorney-General of the Gambia v. Pierra Sarr N'Jie [1961] A.C. 617 : [1961] 2 All E.R. 504 : [1961] 2 W.L.R. 845 (PC)) to the following effect :. . . The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. Has the Attorney- General a sufficient interest for this purpose ? Their Lordships think that he has. The Attorney-General in a colony represents the Crown as the guardian of the public interest. It is his duty to bring before the judge any misconduct of a barrister or solicitor which is of sufficient gravity to warrant disciplinary action. (quoted at SCC p. 720) Thereafter he proceeded to plead for a wider view being taken of locus standi in public interest litigations and derived support for his plea from certain observations of Professor S.A. de Smith and Professor H. W. R. Wade, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public grievances. 614. In the Fertilizer Corporation Kamgar Union case (Fertilizer Corpn. kamger Union v. Union of India, the question for consideration was whether the workers in a factory owned by Government could question the legality and/or validity of the sale of certain plants and equipment of the factory but the management and though the Court ultimately did not interfere because it did not find the sale to be unjust and unfair or mala fide, on the maintainability of the challenge the Court has made certain observations having a bearing on the aspect of the workers' locus standi. Chief Justice Chandrachud at SCR page 65 of the Report has observed thus : (SCC pp. 579-80, para 23)But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226. 615. In the instant case the impugned circular as well as the short-term extensions, according to the petitioners, are directly subversive of judicial independence, which is a basic feature of our Constitution, in the upholding of which not merely the sitting Additional Judges but also the lawyers practising in various High Courts are keenly interested. In fact, in the task of administration of justice the role of Judges and the role of lawyers are complementary to each other and the practising lawyers as a class are an integral part of justicing machinery rendering assistance to the Judges in the discharge of their function of reaching justice to the litigants appearing before the Courts; in other words the practising lawyers, who are nothing short of partners in the task of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independent judiciary to ensure fair and fearless justice to the litigants. That being the position, can it be said that the petitioners either in their individual capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed candidate for initial recruitment or non-continuance of an Additional Judge on the expiry of his term does not give rise to any enforceable obligation against the President/Union Government and in favour of the person who is not appointed or not continued and, therefore, even a breach of the constitutional mandate, such as total lack of consultation or lack of full and effective consultation of consultation getting vitiated by mala fides, merely amounts to a case of complete non-sequitur. In other words, counsel contended that even on the assumption that the Government's actions are not warranted by the constitutional provisions, the invalidity or unconstitutionality thereof does not give any corresponding right to Shri S. N. Kumar to sustain the petition. 617. The aforesaid contention of counsel for the contesting respondents directly raises two questions : (i) whether the proposed appointees (either from the Bar or Services), who are being recommended for their initial appointments, and the sitting Additional Judges, whose cases for their continued appointments either as Additional Judges or as permanent Judges on the expiry of their initial term are to be decided, stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not lie it would be correct to say that in the case of non-appointment at the stage of initial recruitment the mandate of consultation becomes otiose, superficial or inconsequential, or that a positive breach thereof may not provide any relief whatever to the aggrieved person but since that question does not arise in the instant case I would rather leave it open for decision in an appropriate case and proceed on the basis that a mandamus for reconsideration of his case would not lie as the aggrieved person does not have the right to be considered. But question is whether the sitting Additional Judges, whose continuance either for an extended term or as permanent Judges is to be determined on the expiry of their initial term, stand in the same position as that of proposed appointees for initial appointment ? 619. It is true that, unlike a permanent Judge whose tenure is fixed by reference to his age, the tenure of an Additional Judge when appointed under Article 224(1) is fixed by the warrant of his appointment and on the expiry of the period mentioned in the warrant he ceases to be a Judge of the High Court. It is also true that his continuance as an Additional Judge for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Constituent Assembly including eminent authorities in this field like Sir Tej Bahadur Sapru, Shri K. M. Munshi and others, mainly on the ground that Members of the Bar recruited as Additional Judges will revert to the Bar on the expiry of their term and such reversion to the Bar was manifestly dangerous to the fair administration of justice and opposed to public interest. In 1956 it was felt that the provision for recalling retired High Court Judges to function on the Bench for short periods (loosely called ad-hoc Judges) was found to be neither adequate nor satisfactory and the same (original Article 224) was deleted and replaced by a provision for appointment of Additional Judges to clear off arrears (vide Statement of Objects and Reasons) and the present Article 224(1) came to be enacted. In other words the existence of a large volume of mounting arrears in several High Courts and the necessity to clear off the same provided the basis for inserting the provision in the Constitution. That this is the rationale of the provision for appointment of Additional Judges has been clearly indicated by the Madras High Court in Kandasami Pillai v. Muthuvenkatahala (1917 33 Mad LJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en construed and worked by all concerned under some misapprehension in the sense that it has been resorted to even in situations where article 216 ought to have been resorted; for, since the insertion of Article 224(1) in the Constitution it has been the invariable practice to appoint every Judge (whether from the Bar or Services) initially as an Additional Judge for two years and then to make him permanent in due course, i.e. as and when a permanent vacancy arises in that High Court. Such a practice, though contrary to the clear intendment of the said two articles, followed by the President or the Union Government has given rise to a legitimate expectancy on the part of the sitting Additional Judges (whether from the Bar or Services) to be considered for their continuance either for an extended term or for making them permanent on vacancies arising in permanent posts. In fact after following such practice over the years and thus putting all the Additional Judges into the belief that they will be confirmed in normal course it does not behove the appointing authority to say that the sitting Additional Judges have no right to be considered for their continuance either for an extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above the same became necessary because at the time of the insertion of Article 224(1) into the Constitution no provision was inserted imposing any ban or prohibition on practice by such Additional Judges after expiry of their term, as was thought of in 1949 when Draft Articles 199 (dealing with Additional Judges) and 196(b) (dealing with ban on their practice) were considered together and deleted together. It will be pertinent to mention here that during the Parliamentary debates over the relevant Bill which sought to introduce Article 224(1) into the Constitution great anxiety was shown by several Members to see to it that such Additional Judges, when recruited from the Bar were not permitted to revert to the profession on the expiry of their term and a categorical suggestion was put forward that when a Member of the Bar was appointed as an Additional Judge it must be done with a view to make him permanent in due course and if that was not possible an Additional Judgeship ship should not be offered to a Member of the Bar. In fact in Lok Sabha, Shri Tek Chand, M.P. from Ambala-Simla had opposed the recruitment of any Member of the Bar as an Additional Judge and suggested that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt every Judge (whether from Bar or Services) initially as an Additional Judge for two years and then to make him permanent in due course without considering the question as to which one of the two articles was attracted has been followed by the appointing authority and therefore, it is clear that on this ground alone it can be held that the sitting Additional Judges have an enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for their continuance either by extending their term or making them permanent until this practice is changed and a proper practice is introduced which can be done only after having made a complete and correct assessment about the requisite strengths of permanent as well as Additional Judges for every High Court depending upon statistical data to be collected throwing light on 'normal business', 'temporary increase' and 'arrears of work' and after fixing rate of disposal per Judge per year and defining what should be termed as main cases, miscellaneous cases or interlocutory cases etc. 624. As regards the constitutional convention or practice and the undertaking whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lising the otherwise vague and loose content of a power to be found in certain article has been emphasized. In the State of W.B. v. Nripendra Nath Bagchi the entire interpretation of the concept of 'vesting of control' over District Courts and Courts subordinate thereto in the High Court was animated by conventions and practices having regard to the history, object and purpose that lay behind the group of relevant articles, the principal purpose being, the securing of the independence of the subordinate judiciary. It is true that no constitutional convention or practice can affect, alter or control the operation of any article if its meaning is quite plain and clear but here Article 224(1) merely provides for situations when Additional Judges from duly qualified persons could be appointed to a High Court and at the highest reading the article with Section 14 of the General Clauses Act it can be said that the power conferred by that article may be exercised from time to time a occasion requires but on the question as to whether when the occasion arises to make appointment on expiry of the term of a sitting Additional Judge whether he should be continued or a fresher or outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be forgotten that when such undertakings were thought of, the postulate underlying the same was that there was no question of the appointing authority not making the offer of permanent Judgeship to the concerned Member of the Bar but that such an offer would be made and upon the same being mead the sitting Additional Judge recruited from the Bar should not decline to accept it and revert to the Bar. I am therefore clearly of the view that the aforesaid convention or practice and the undertaking serve the cause of public interest in two respects as indicated above and those two aspects of public interest confer upon the sitting Additional Judges recruited from the Bar a legitimate expectancy and the enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for continuance in that High Court either by way of extending their term or making them permanent in preference to freshers or outsiders and it is impossible to construe Article 224(1) as conferring upon the appointing authority absolute power and complete discretion in the matter of appointment of Additional Judges to a High Court as suggested and the suggested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. Principally, the bringing in of the consultative process under Article 217(1) on the point of suitability again at the stage of deciding upon their continuance is objected to on three grounds : (a) it amounts to making their continuance dependent upon the evaluation of their capacity, character, integrity and fitness as emerging from their work, performance and behaviour during their initial term and runs counter to the well-settled position that they are not on probation, (b) if in that process they are dropped because of suspected misbehaviour or reported lack of integrity, it would, in substance and reality, mean their removal merely on the basis of reports, rumours and gossip jeopardising their security and independence without resorting to the regular process of removal laid down in Article 124(4) and (5) read with Article 218 and the Judges (Inquiry) Act 51 of 1968, and (c) it is bound to affect the quality or character of justice administered by them during their initial term or at any rate towards the end of their term because human nature being what it is their work, performance and behaviour will be guided by the anxiety to keep themselves on the right side of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed in their warrants of appointment and during the fixed tenure they can be removed only by following their regular process laid down in the Constitution, and Judges (Inquiry) Act, 1968; any further appointment is always the result of a fresh consideration and fresh consultation with the consulting functionaries mentioned in Article 217(1). To suggest that they should be reappointed as a matter of course if the pre-conditions of Article 224(1) subsist or pendency of work justifies their confirmation and then take steps for their removal under Article 124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968 would be manifestly unsound, if not absurd. Counsel disputed that if as a result of the consultative process undertaken they are dropped it amounts to their removal because, according to him, it becomes a case of non-appointment after their initial term has expired. Counsel strenuously disputed that bringing in the process of consultation under Article 217(1) inclusive of suitability again at the stage of reappointment would affect the quality or character of justice administered by them during their initial term or towards the end of their term as suggested' by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... almost convincing rival submissions made on either side as summarized above but the answer to the same will have to be found only on objective considerations. At the outset it may be stated that it was not disputed before us that sitting Additional Judges are not on probation and cannot be regarded or dealt with as probationers. Question is what is the implication of admitting the position that an Additional Judge is not a Judge on probation as has been done by Shri Kankan in his counter- affidavit dated July 22, 1981 (filed in the Transfer Case No. 20 of 1981) ? It is true as has been pointed out by the learned Attorney-General that they are not probationers in the sense that they have an indefeasible tenure though for the periods fixed in their warrants of appointment and that during such fixed tenure, like the permanent Judges, they can be removed only by following the regular process for it as indicated in the Constitution and Judges (Inquiry) Act, 1968 but in the context of their having an enforceable right not to be dropped illegally and to be considered for their continuance, will it be possible to confine the concept of probation to these two aspects mentioned by him ? D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued as an Additional Judge or confirmed as a permanent Judge ? The answer at the first impulse and rightly would be in the negative but the question requires deeper consideration. If the misbehaviour or lack of integrity is glaringly self-evident the question of his continuance obviously cannot arise and in all probabilities will not engage the attention of the appointing authority, for, the concerned Judge in such a situation would himself resign but when we talk of misbehaviour or lack of integrity on the part of an Additional Judge having come to the fore, by and large the instances are of suspected misbehaviour and/or reported lack of integrity albeit based on opinions expressed in responsible and respectable quarters and the serious question that arises is whether in such cases the concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon ? In my view since the question relates to the continuance of a high constitutional functionary like the Additional Judge of High Court it would be jeopardising his security and judicial independence if ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consultative process under Article 217(1) should not be invoked - at least until such time as proper machinery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Article 124(4) and (5) of the Constitution. 629. However, the third ground of objection to bringing in the consultative process covering suitability under Article 217(1) at the stage of deciding upon their continuance does not impress me much. It is difficult to accept the contention that bringing in the suitability test under Article 217(1) at that stage is bound to affect the quality or character of justice administered by the sitting Additional Judges during their initial term or towards the end of their term. In fact, so far on every occasion the consultative process inclusive of the suitability test under Article 217(1) has been resorted to while considering the question of granting extension to the Additional Judges or making them permanent on the expiry of their initial term and no one has suggested that because of this their work, performance or behaviour was or has been guided by the anxiety to kee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and independence might be frowned upon by the Government and there was nothing to prevent the Government from terminating his appointment as and when it liked. It was further pointed out that though his appointment was required to be made in consultation with the Chief Justice of India there was nothing in the Bill to show that his termination will also require similar consultation and even if it were assumed that such consultation would be made even for his termination the process of consultation, with its own limitations, would be a poor consolation to an accused whose life and honour was at stake. It is true that these infirmities in Clause 7 of the Bill were pointed out by this Court to emphasize the aspect that appointing a retired High Court Judge as a Judge of the Special Court who is to be nominated by the Central Government to try a special class of cases may not inspire confidence not only in the accused but in the entire community. It is also true that on these infirmities being pointed out the then Central Government accepted the suggestion of the Court that only a sitting Judge of a High Court would be appointed to preside over a Special Court and that such appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid question cannot at all arise in view of my conclusion that the test of suitability falling within the consultative process under Article 217(1) cannot and should not be resorted to, while deciding upon the continuance of sitting Additional Judges. Obviously the question cannot arise in cases of non-appointments qua proposed appointees at the time of their initial recruitment, for such non- appointments are cases of non-sequitur. My conclusion thus completely obviates the dilemma posed in the question. However, I shall be considering this question on the assumption that I am wrong in my view that the test of suitability is not attracted and should not be invoked at the time of deciding upon the continuance of the sitting Additional Judges. The question of primacy obviously has to be considered by keeping in mind the object or purpose of providing for such consultation which was explained by Dr. Ambedkar in the Constituent Assembly thus :There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the questions is how these two objects could be secured. There are two different ways ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India... Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly. In Samsher Singh case (Samsher Singh v. State of Punjab, the Court was dealing with consultation with the High Court under Article 234 read with Article 235 and in that behalf Krishna Iyer, J. at SCR page 837 of the Report has observed : (SCC p. 882, para 149) In all conceivable cases consultation 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 verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. 631. Keeping both the above aspects in mind one has to consider the question of primacy and in order to consider the same it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rejection of the amendment is a clear pointer indicating that the Constituent Assembly wanted to give coordinate authority to each one of the three consulting functionaries and no primacy was intended to be given to the views or advice of any particular functionary. 632. In the first place in the very nature of things it is difficult to accept the submission that all the three consulting functionaries under Article 217(1) must be regarded as of coordinate authority for the simple reasons that on aspects like capacity, character, merit, efficiency and fitness which converge on the suitability of the person proposed for appointment the Governor of the State will be least informed and will have nothing to say whereas the Chief Justice of the High Court and Chief Justice of India, being best informed, are well equipped to express their views and tender advice; further it is an accepted position which has been alluded to by the Law Commission in its 14th Report, that it is because of the financial aspect (salary and emoluments of a High Court Judge being charged on the Consolidated Fund of the State) and information about the antecedents, local affiliations and like other matters, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposed appointee; surely it is not a case of watching the demeanour of a witness so as to put the assessment of the Chief Justice of the High Court on any higher footing. Having regard to these aspects, particularly the last one, one will have to consider whether any primacy could be and should be given to the views and advice tendered by the Chief Justice of India to the President in the matter of appointing High Court Judges. I must confess that the article does not expressly suggest that any primacy is to be accorded to his advice during the consultative process undertaken in Article 217(1) but, in my view, the scheme of consultative process contemplated by that article envisages consideration of identical facts and materials bearing on the suitability of the candidate by both the consulting functionaries, namely, the Chief Justice of the High Court and the Chief Justice of India, as also an exchange of their views on such material, and thereafter placing of the entire material together with each one's views thereon and the tendering of the advice or final recommendation by the Chief Justice of India to the President whose decision should be guided by such advice or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking such consultative process must also ensure fair play qua the concerned sitting Additional Judge. In other words, though the principle of natural justice in its full vigour is not contemplated, the sitting Additional Judge should not receive a raw deal at the hands of the consulting functionaries and either one or the other or if necessary both should hear him, especially if any adverse material is weighing in their minds against him, just as in a case under Article 222(1) the personal difficulties and other grounds of objections of the proposed transferee are considered by the consulting functionary. In other words, in my view the scope and ambit of the consultative process under Articles 217(1) and 222(1) are and must be the same. 634. I shall next deal with the question of short-term extensions which have been challenged by the petitioners as being directly subversive of the independence of judiciary and, therefore, not contemplated by the Constitution. The contesting respondents in that respect have placed strong reliance upon the provision contained in Article 224(1) to suggest that such short-term extensions are contemplated and fall within the power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd regarded as unconstitutional. I have already held that the suitability test is not attracted while deciding upon the continuance of the sitting Additional Judges but assuming that it is required to be gone through the process must be completed well in advance of the date of expiry of their initial term or if for any reason it cannot be so completed the concerned Additional Judge must be given extension for at least one year. In this behalf I would again like to refer to the constitutional convention or practice that has grown over the years, notwithstanding the phrase for such period not exceeding two years as he may specify occurring in Article 224(1), which is to appoint Additional Judges initially for a period of two years, which has come to be regarded as the 'normal term' and on the expiry of this term to continue them for a further period of two years and so on till they are confirmed as permanent Judges, subject, of course, to the pre-conditions continuing to obtain in that High Court and it has been pointed out that Article 224(1) has been worked in that manner over the years. In any case no extension for less than a year should ever be granted irrespective of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing permanent post vacant as is happening at present frequently. The submission of the petitioners therefore has been that in view of such reality obtaining in various High Courts the action on the part of the appointing authority in Keeping a large number of sitting Additional Judges as Additional Judges would be arbitrary and unconstitutional and a clear case exists for declaring them to be deemed to have become permanent or for directing the President to make them permanent by appropriately increasing the permanent strength in the concerned High Courts and it will be within the powers of this Court to pass appropriate orders or give necessary directions in this behalf. In support of these submissions statements containing statistical materials pertaining to Bombay High Court and Delhi High Court were relied upon and on the question of Courts' power to grant appropriate reliefs reliance was placed upon two decisions of this Court, namely, Shewpujanrai Indrasanrai Ltd. v. Collector of Customs and Y. Mahaboob Sheriff v. Mysore State Transport Authority. 636. On the other hand, counsel for the contesting respondents denied that the appointing authority has failed to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a High Court while keeping a permanent post vacant or unfilled. But beyond making these observations which should guide the exercise of the power both under Article 216 and article 224(1) by the appointing authority I am satisfied that it will not be proper for this Court to give the directions or reliefs sought by the petitioners for the reasons which I shall presently indicate. In the first place it cannot be disputed that appointing Judges to a High Court either as permanent Judges or Additional Judges is purely an executive function entrusted by the Constitution to the appointing authority and it will not be proper for this Court to usurp that function to itself or issue any directions in that behalf unless forced by glaringly compelling circumstances. Secondly, no direction or relief as sought is possible unless a full, complete and correct assessment about the requisite strengths of permanent as well as Additional Judges of every High Court as on a particular date is made available to the Court. Thirdly such assessment about the requisite strengths for every High Court must depend on statistical data to be collected throwing light on 'normal business', 'tempora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India v. Sankalchand Himatlal Sheth, in the negative by a majority of 3 : 2 but according to counsel for the petitioners the majority view requires reconsideration and since these cases were heard by a larger Bench of seven Judges he addressed the Court elaborately on the point. Before dealing with the various aspects of the contention urged by the counsel for the petitioners in this behalf it will be desirable to set out in brief the background in which that question arose for consideration and in what manner the same was dealt with in that case both by the Gujarat High Court at the initial stage and by this Court in appeal. During the last emergency a mass transfer of permanent Judges from one High Court to another was attempted in the name of national integration and in May 1976 it has been proposed to transfer 56 Judges of the various High Courts and as the first instalment 16 Judges, including Chief Justices, were in fact transferred. Justice Sankalchand Sheth, one of the transferees, was shifted from Gujarat High Court to the High Court of Andhra Pradesh. He filed a writ petition in the Gujarat High Court against the Union of India and Chief Justice A. N. Ray challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s client was prepared to withdraw his writ petition with the leave of the Court. Though the appeal got settled as above to the satisfaction of Justice Sheth, the Constitution Bench desired to consider important issues arising in the case which related to the aspect of judicial independence involved in transfer of High Court Judges and after hearing arguments from counsel on either side delivered its judgment expressing its views on the issues involved. It may be stated that the plea of promissory estoppel was not pressed and was not considered by this Court. On the aspect of 'consent' of the Judge concerned qua Article 222(1) the Bench was divided in its opinion, the majority of the Court (Chandrachud, Krishna Iyer and Fazal Ali, JJ.) upon a consideration of the wording of the article itself in the context of the scheme, other provisions and all relevant aspects held that as a matter of construction 'consent' could not be read into Article 222(1) and further that consent of the Judge who was transferred was not necessary as transfer involved no fresh appointment; the majority further held that the power to transfer could not be exercised by way of punishment but cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or (c) if the opinion or advice of the Chief Justice of India was ignored or brushed aside without cogent reasons. On the scope and efficacy of consultation contemplated under Article 222(1) two learned Judges Chandrachud, J. and Krishna Iyer, J. dealt with those aspects at some length and the other learned Judges have substantially expressed their agreement with their views on the point. The effect of the observations on the scope of consultation can be briefly sated thus : Consultation with the Chief Justice is obligatory and a condition precedent to the exercise of that power by the President; such consultation must be a real, substantial and effective consultation and in order that it would be so, all relevant facts in support of the proposed action of transfer must be placed before the Chief Justice and all his doubts and queries must be adequately answered; the consultation casts an obligation and a duty on the Chief Justice to elicit information not merely from the President and the Judge concerned but from such quarters as he thinks fit on all relevant aspects bearing on the desirability, advisability and necessity of the proposed transfer including factors personal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l integration but since it was a policy matter the Court was not concerned with it directly but suggested that considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another High Court involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose, and further added that if at all on mature and objective appraisal of the situation it was still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object could be more easily and effectively attained by making appointments of outsiders initially but he categorically observed that the record of the case before the Court did not bear out the claim that any of the 16 High Court Judges had been transferred in order to further the cause of national integration and the true position was far from it. On the question of non-consensual transfers being within the article Krishna Iyer, J. summed up the position thus : (SCC p. 275, para 118)Logomachy may confuse, philosophy may illumine, teleology may shed interpretative sheen. We have considered the design, the source, the impact and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween, in which the exigencies of administration necessitate the transfer of a Judge from one High Court to another. The factious local atmosphere sometimes demands the drafting of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favourites and non-favourites. The voice of compassion is heard depending upon who articulates it. Though transfers in such cases are pre-eminently in public interest, it will be impossible to achieve that purpose if a Judge cannot be transferred without his consent. His personal interest may lie in continuing in a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be severed to act as a reminder that the place of justice is hallowed place . It is pointed out that in the cases mentioned above, if the veil of the language of judicial courtesy was lifted, it will appear clear that the power of transfer that would be used would be to punish a Judge for misbehaviour, for which, as the judgment points out, action has to be taken only under Article 218 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presently indicate. 643. But before dealing with the contention I would like to observe that I am in agreement with counsel for the petitioners that the illustrative cases given in the passage quoted above are in substance where Judges could be said to be guilty of misbehaviour falling under Article 124(4) and that their transfer to other High Courts, apart from being by way of punishment, would amount to doing great dis-service to public interest. In this context I would like to emphasize that the safeguard of public interest read into Article 222(1) is not intended for protecting any black sheep in the judiciary but for protecting the numerous honest, conscientious hard- working Judges and I have always been of the confirmed view that no corrupt or dishonest Judge, and nor a Judge, who contrary to his oath of office, indulges in any kind of favouritism while discharging his duties - who could be likened to a rotten egg, should be tolerated in the judicial basket and he deserves to be dealt with under Article 218 read with Article 124(4) and (5) but not by transferring him to another High Court, for, such a transfer would be contrary to public interest. That is why I would reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the hands of the Central Government.We also took into account the fact that this power of transfer of Judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular Judge from its High Court because that Judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We have taken care that in effecting these transfers no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of general administration. Consequently, we have introduced a provision that such transfers shall take place in consultation with the Chief Justice of India who can be trusted to advise the Government in a manner which is not affected by local or personal prejudices. (vide : Constituent Assembly Debates, Vol. 11, page 580) It is thus clear that transfers under Article 222(1) have to be made only in public interest the ground being convenience of the general administration and the two instances given by Dr. Ambedkar (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consultative process which he is required to undertake for observing the second safeguard of full and effective consultation. It is, therefore, not possible to accept the contention that the two safeguards of public interest and effective consultation subject to which the power of transfer is to be exercised are either illusory or unreal and if they afford real protection to the Judge concerned against the abuse of power as suggested in the majority view there would be no need to read consent into Article 222(1). 645. The other ground which necessitates the reconsideration of the majority view, according to the counsel for the petitioners, is that while rejecting the contention of the original petitioner that a transfer of a Judge from one High Court to another involves a fresh appointment and, therefore, his consent to the transfer would be necessary, both Chandrachud, J. and Krishna Iyer, J. have proceeded on the basis that the Government of India Act, 1935 did not contain any provision for the transfer of a Judge and contrasted Section 220(2) proviso (c) of that Act with Article 217(1)(c) of the Constitution and took the view that while enacting the latter provision the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a High Court Judge when he was either appointed to another High Court or to the Federal Court, that is to say, the expression 'appointment' had been used really to connote a transfer, suggesting an interchangeable use of the two expressions by the British Parliament and, therefore, the basis adopted by the learned Judges for drawing a distinction between 'appointment' and 'transfer' would disappear and, therefore, the conclusion arrived at would not be correct. Counsel fairly stated that Reports of British Parliamentary Proceedings compiled by Hansard were not available to him when Sankalchand Sheth case (Union of India v. Sankalchand Himatlal Sheth, was argued by him before this Court but have since been made available now and he was making his submission before us. There may be some force in the submission but in my view the submission is not adequate to necessitate and reconsideration of the majority view for two reasons. In the first place the assumed basis (which is now found to be wrong) for making the distinction between 'appointment' and 'transfer' in Article 217(1)(c) was merely used for refuting an argument of the original petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with policy transfers as I feel that they need some clarification and apropos those observations I would like to deal with and make my observations with regard to the two policies which appear to have been accepted in principle, though not fully formulated and formally declared by the Union Government in connection with the transfer of High Court Judges. In Sankalchand Sheth case (Union of India v. Sankalchand Himatlal Sheth, a view has been expressed by Chandrachud, J. that the safeguard of effective consultation suggests that policy transfers on wholesale basis are outside the purview of Article 222(1) and in this behalf the pertinent observations made by him are as follows : (SCC p. 227, para 38)Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. (vide SCR p. 454 of the Report) The last sentence in these observations is likely to create a wrong impressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and adopted whenever a transfer is to be made in pursuance of such policy the proposal, before it culminates into an order, will have to satisfy the requirements of Article 222(1). 649. Coming to the two policies which the Union of India seems to have accepted in principle though not fully formulated by fixing the mechanism or modality of procedure, it may be stated that one such policy is to have one-third of the Puisne Judges in a High Court from outside the State - a policy which has been referred to in the Circular dated March 18, 1981 and the other is the policy to have Chief Justices of all the High Courts from outside - a policy that became the subject-matter of debate in Shri K. B. N. Singh's case. Without going into the merits or demerits of either of them and without going into the question whether there are proper or justifiable grounds for adopting either of them, that is to say, whether either of them serves any public interest or not, I would like to deal with a couple of aspects touching these policies which I feel it is necessary to clarify at this stage. It was suggested at one stage during the arguments that individual selective transfers are prone to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chanism or modality of procedure in that behalf is also fixed and followed in practice. Conversely, a selective transfer in an appropriate case for strictly objective reasons and in public interest of general administration could be non-punitive. In other words, each case of transfer, whether based on a policy or a selective transfer, will have to be judged on the facts and circumstances of its own for deciding whether it is punitive in character in the sense of having been effected with some oblique motive or not. 650. Coming to the impugned Circular Letter dated March 18, 1981 it is clear that the petitioners on the one hand and the contesting respondents on the other are at great variance with each other on the true nature, content and effect thereof; whereas according to the petitioners the circular letter seeks to effect, in substance and reality, a mass transfer of sitting Additional Judges as also of the proposed appointees based on a policy decision unilaterally taken by the Law Minister and/or the Union Government and in that behalf seeks to obtain their consent under threat, coercion and duress, according to the contesting respondents no such transfers are intended at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appointment or to accommodation in accordance with the preferences given; sixthly, the letter strikes a note of urgency and requests the addresses thereof to initiate action very early and after obtaining the written consent and preferences from the persons concerned to forward the same to the Law Minister within a fortnight of the receipt of the letter; lastly, the circular letter has been addressed by the Law Minister to the Governor of Punjab and all Chief Ministers of the States (except North-Eastern States) requesting them to obtain such consent and preferences from all Additional Judges as well as the proposed appointees, with merely a copy of the letter being sent to each of the Chief Justices of the concerned High Courts. 651. Counsel for the contesting respondents pointed out that when an Additional Judge is appointed under Article 224(1) his tenure is fixed by the warrant of his appointment and on the expiry of the period mentioned in the warrant he ceases to be a Judge of the High Court and he has no vested right either to be continued or to be made permanent and in either extending him for a further term as an Additional Judge or in making him permanent in the vaca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; means 'removal from one place or position to another', but it is not such physical shifting of a person from one place to another with which the Court is concerned in the case; the Court is concerned with the concept of transfer contemplated in Article 222(1) of the Constitution which says : The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court . This clearly refers to the transfer of a person, who is already a Judge of a High Court. As stated earlier, para 2 of the Circular Letter refers to two categories of persons, namely, sitting Additional Judges and the proposed appointees (either from the Bar or Services) and it would be clear that in the case of the latter who are being initially appointed Judges, either as Additional or permanent, to some High Court there would be no question of any transfer in their case as contemplated in Article 222(1). It is difficult to accept the petitioners' contention that in regard to these proposed appointees recommended for their initial appointment the circular letter seeks to obtain their consent for their transfer, thought in being appointed to ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Judge his consent is sought for being 'appointed to' another High Court it is virtually and in substance seeking his consent for his transfer from his own High Court to another High Court falling within the concept of transfer contemplated in Article 222(1). It is true that para 2 of the Circular Letter uses the expression to be appointed but it is not the nomenclature or label used that would be decisive of the matter but one has to look to the substance and looked at the Circular from this angle it is clear that insofar as sitting Additional Judges are concerned their consent is sought for transferring them from their own High Courts to other High Courts and the attempt in substance is to transfer them under the guise of making fresh appointment on the expiry of their initial or extended term. Further, considered in the light of the historical background, there appears to be some force in the petitioners' contention that the Circular letter is another attempt on the part of the Union Government this time to effect mass transfers of sitting Additional Judges, the previous attempt to effect mass transfers of permanent Judges during the last Emergency having failed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting Additional Judges on the expiry of their initial term or extended term not their transfer and the consent thereunder was merely sought for making their fresh appointments under Article 217(1), explained the genesis and reasons which prompted him to issue the Circular and in that behalf stated that the various complaints were pouring in about prejudiced attitudes bred by kinship and other local links and affiliations etc., that political links had also been mentioned in certain cases and various State authorities had expressed their reservations about the continuance of some Additional Judges and it was felt that in some cases of this kind if Additional Judges could be made permanent in other High Courts there could be no valid objections to such appointments as their service would then be outside the local setting in which they had their roots. Such a statement on the part of the Law Minister by way of explaining the genesis and reasons for the issuance of the Circular letter undoubtedly lands considerable force and support to the petitioners' contention that 'furthering national integration and combating parochial trends' is merely a garb used and the real intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' period. Shri P. Shiv Shankar. - I have never said 'ad hoc'. Where the Additional Judges are there, each complaint will have to be considered on its own merit and a decision could be either to drop a person based on evidence or to see if he could be transferred.Shri Bapusaheb Parulekar. - You have stated : 'I may add that it is not the intention of the Government to appoint all Additional Judges from outside the State'. What is the criteria ? You can victimise any person if this is the policy of the Government. Is it not ? Shri P. Shiv Shankar. - I can assure my friend, it is not a question of victimisation. As I said each case will be considered on its own merit. It is not the intention that everyone should be transferred. That is all. (Interruptions.) Perhaps he is going back to the same ground on the question of sporadic transfer of Chief Justice and Judges and so on. The position is very simple. Supposing there is any material bearing on a particular case, that would be considered on its own merit. It is not the intention that everyone should be transferred. I think I have covered all the points raised. It is significant that though in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not forthcoming from some or any of them has not been considered or dealt with in the letter. Thirdly, paragraph 3 of the letter, by necessary implication, contains a threat to the Additional Judges that they would not be continued as Additional Judges or confirmed as permanent Judges and may be dropped unless they furnish their consent inasmuch as without more it merely states that furnishing of consent as well as indication of the preferences does not imply any commitment on the part of the Government either in regard to their appointment or accommodation in accordance with the preferences given; such misgiving which naturally arises from this kind of a statement ought to have been removed by clearly indicating the consequences of non- furnishing of the consent. It ought to have been stated clearly and categorically that non-furnishing of the consent will not be held against any Additional Judge and will not come in his way of being continued or being made permanent and further that furnishing of consent by an Additional Judge will not enable him to steal a march over those who have either not furnished or refused to furnish their consent in the matter of making them permanent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued how can we expect justice from them ? What is their credibility ? It is true that in this behalf the petitioners have relied upon extracts from Newspaper reports of such statement and utterances but when these have been made part of their pleadings by the petitioners [vide para 2 of Shri Tarkunde's petition and para 43(O) of Shri Gupta's petition] a duty is cast on the contesting respondents to deal with the same in reply and from the counter-affidavits filed in reply by Shri Kankan on their behalf it will appear clear that there is no denial that such statements and utterances were made by the persons concerned. In reply to para 2 of Shri Tarkunde's petition, Shri Kankan has merely averred that the views stated to have been expressed by the Chief Minister of a State and a Cabinet Minister would have been their personal views and do not and could not have conveyed the policy of the Government , while there is no specific reply to para 43(O) of Shri Gupta's petition at all but an omnibus general submission in regard to para 43(H) to para 43(Q) has been made by Shri Kankan by stating thus : 'With regard to paras 43(H) to 43(Q) I submit that these paras are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is reached that the Circular letter seeks to effect in substance and reality transfers of sitting Additional Judges from their own High Courts to other High Courts on the expiry of their initial term or extended term and the consent sought from them thereunder is for such transfer and not for their 'fresh appointment' as permanent Judges of other High Courts, the challenge to the same as being violative of Article 222(1) of the Constitution becomes quite apparent. It was sought to be urged at one stage that if on true construction of Article 224(1) the sitting Additional Judges during their tenure are outside the pale of transfer under Article 222(1) then the question of the impugned Circular being violative of Article 222(1) does not arise. It is difficult to accept this contention because even assuming that Article 224(1) is construed in the manner suggested the Circular aims at transferring the sitting Additional Judges not during their tenure but just on the expiry of their term and if their continuance as permanent Judges (and not as Additional Judges because the Circular talks of appointing them as permanent Judges) does not involve a fresh appointment as held abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge to the impugned Circular letter based on Article 14 also seems to be well founded and the same is irrespective of whether the Circular letter deals with transfers of Additional Judges or their fresh appointments and the initial appointments of the proposed appointees. Briefly stated the contention is that in regard to the sitting Additional Judges it makes an invidious distinction between those who would be furnishing their consent and those who would not be doing so or would be refusing to furnish their consent, inasmuch as the former would be at an advantage while the latter will suffer a disadvantage and even within the class of those who would be furnishing their consent it gives to the Government unfettered and unguided power or discretion to pick and choose, that is, to select some for being shifted to High Courts other than their own while retain and appoint others in their own High Courts - which power can be exercised either by way of punishment or by way of favouritism. It is further pointed out that the Circular letter will encourage an ignominious race amongst self-seeking Judges to look to the Government for appointment as permanent Judges out of turn or select plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being dropped altogether and correspondingly it confers some advantage on those who would be furnishing their consent. That the Circular letter was not a preliminary step in the direction of collecting data and information from siting Additional Judges which could be placed before the Chief Justice of India when the consultation process under Article 217(1) would be gone into, as has been now stated by Shri Kankan for the contesting respondents, but was and is intended to be acted upon forthwith by conferring an advantage on those who would be furnishing their consent is clearly borne out by the stand taken by Shri Kankan on behalf of the contesting respondents at the stage of the appeal preferred by them against the interim relief granted by the learned Single Judge in Shri Iqbal Chagla's writ petition; by the interim relief granted by the learned Single Judge the contesting respondents were restrained by an injunction from implementing the Circular letter or from acting in any manner upon the consent if obtained from any person following on or arising from the said Circular letter and while challenging this order of interim relief as being erroneous and ought not to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed appointees (either from the Bar or Services) recommended for their initial appointment, there will be no question of discrimination in the case of those who have not been appointed at all but in the case of consenting appointees discrimination is bound to arise because of unfettered and unguided power or discretion vesting in the Government to pick and choose from amongst the consenting appointees, for, in their case also it will be up to the Government to decide and select some for being appointed to High Courts other than their home-State High Courts and appoint the others in their home-State High Courts. Having regard to the aforesaid position it is abundantly clear that invidious discrimination is writ large on the face of the circular letter and the same is clearly violative of Article 14 and is such unconstitutional and liable to be struck down. 660. In the result the impugned Circular letter, in my view, deserves to be struck down for the aforesaid three reasons. 661. Coming to the specific individual case of Shri S. N. Kumar (respondent 3 in Transferred Case NO. 20 of 1981) it may be stated that the gravamen of the challenge is directed against the President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvedi further averred categorically : I state that as a matter of fact there was real and effective consultation with the two Chief Justices and the President preferred the views of the Chief Justice of Delhi High Court which were not favourable for a further appointment of S. N. Kumar. By implication it became obvious that there was complete divergence between the two Chief Justices in their views on the point of Shri S. N. Kumar's continuance and that the Chef Justice of India had made a recommendation favourable to Shri S. N. Kumar. In such state of pleadings a question naturally arose whether this divergence has arisen on a consideration of the same or identical material by both the Chief Justice or otherwise ? Meanwhile, a newspaper report appearing in the issue of The Hindustan Times of July 10, 1981 under the caption Government overruled Chandrachud's view , not merely stated that, though the Chief Justice of India had dismissed the allegations against Shri S. N. Kumar as unsubstantiated and had recommended his confirmation, the Government had placed greater reliance on the views of the Chief Justice of Delhi High Court but went further and asserted, the reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits and demerits of the grounds which prompted the two Chief Justices to make their divergent recommendations and desired to vindicate his client's honour and fair name before the Bar of this Court but we prevented him from doing so by categorically telling him that it was not the function of this Court to go into the merits or demerits of the grounds or truth or falsity of the material and that the disclosure had a limited purpose and if upon the scrutiny of the disclosed material the Court came to the conclusion that there was no full or effective consultation with the Chief Justice of India the appointing authority's decision dropping his client may have to be quashed and the matter may have to be sent back to the appointing authority for fresh consideration and passing appropriate orders after undertaking the requisite consultation under Article 217(1) again and in that process fair play will require that his client gets full opportunity to have his say in vindication of his honour and fair name. The main question, therefore, that arises for our consideration is whether it could be said on a perusal of disclosed documents that full and effective consultation as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession of one who consults must be unreservedly placed before the consults. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous judgment can be calamitous. It is in the light of these well-settled principles concerning consultation that the disclosed material will have to be scrutinised for deciding whether in the instant case there has been full and effective consultation between the President and the Chief Justice of India in the matter of the impugned decision that was taken in regard to Shri S. N. Kumar. 664. In all 13 documents comprising correspondence between the Chief Justice of Delhi High Court and the Union Law Minister, between the Chief Justice of India and the Union Law Minister and between the Chief Justice of Delhi High Court and the Chief Justice of India and some notings made by the Union Law Minister have been disclosed. A perusal of this material clearly shows that, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Justice of India were furnished to him by the Delhi Chief Justice but the Delhi Chief Justice sent a Lengthy letter of five pages dated May 7, 1981 to the Union Law Minister marked Secret - for personal attention only which contained further details and concrete materials including references to specific cases (with suits numbers and titles) wherein according to his Shri S. N. Kumar's integrity had been doubted; and (e) the Delhi Chief Justice had, both before and after the issuance of the aforesaid letter, during his discussions with the Law Minister requested the latter that his letters marked as above may be kept secret for his personal attention only, that is to say, these may be avoided from being brought to the notice of the Chief Justice of India and he also explained to him the reasons for the same and the Laws Minister's notings show that he responded to that request; in fact, by his letter of May 29, 1981 addressed to the Delhi Chief Justice, which happens to be last letter in the file, the Union Law Minister has placed on record the fact that, as per the request of the Delhi Chief Justice, letters marked Secret - for personal attention only , incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his integrity because even after Justice S. N. Kumar's allocation of work changed from the original side to the appellate side, he still continued to hear the part-heard cases on the original side. As regards the letter aspect the Chief Justice of India had all along maintained that conduct on Shri Kumar's part by itself could not be regarded as blame-worthy in view of long standing practice obtaining in that behalf in Delhi High Court, and without more from that alone no inference of corruption or lack of integrity could be drawn. In other words, details of the complaints received against Shri S. N. Kumar or particulars of specific cases wherein Shri Kumar's integrity had become suspect were not mentioned to the Chief Justice of India otherwise the Chief Justice of India would have referred to this aspect while recording what transpired between them. The Delhi Chief Justice's letter to the Chief Justice of India on March 28, 1981, immediately following upon the meeting and oral discussion is of no use because beyond stating that he had an opportunity to discuss this delicate matter with you and further stating that as regards the complaints about Justice S. N. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The reliance on Shri S. N. Kumar's counter-affidavit dated July 17, 1981 wherein a reference has been made by him to the three Summary Suits Nos. 1408, 1409 and 1417 of 1979 is of no avail, for, if his counter-affidavit in that behalf is carefully scrutinised it will appear clear that he has made a reference to these three suits along with six or seven others suits and all in connection with explaining the charge of impropriety on his part in taking up these part-heard matters even after his assignment had been changed from the original side to the appellate side and he explained it on the basis of a long standing practice obtaining in that behalf in Delhi High Court. He has not referred to these suits by way of explaining the allegations of corruption or behaviour raising doubt about his integrity. Anyone who goes through the disclosed material carefully cannot fail to come to the conclusion that vital material in the shape of further details and concrete facts was deliberately kept away from the Chief Justice of India. The contention has, therefore, to be rejected. 666. If the reasons, which prompted the Delhi Chief Justice to keep away his communication of May 7, 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cordial relations with the Chief Justice of India was thoroughly irrelevant in the context of discharging a constitutional obligation. Having regard to the well-settled principles concerning consultation referred to above it is clear that both the Union Law Minister as well as Delhi Chief Justice have failed to discharge their constitutional obligation in the matter of consultation contemplated under Article 217(1). In the first place, contrary to the principles laid down by this Court in Sankalchand Sheth case (Union of India v. Sankalchand Himatlal Shethm that the President must make the relevant data available to the Chief Justice of India for obtaining his considered opinion, the Union Law Minister did not forward the complaints which he had received against Shri S. N. Kumar to the Chief Justice of India (which he forwarded to the Delhi Chief Justice); secondly, the Delhi Chief Justice did not forward further details and concrete facts or materials touching Shri S. N. Kumar's integrity to the Chief Justice of India in spite of the latter having specifically called for the same, and thirdly between them the Union Law Minister and the Delhi Chief Justice saw to it what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record that further details and concrete facts or materials in regard to the allegations of lack of integrity against Shri S. N. Kumar were not put to him nor was his explanation thereon sought; and there is no reason why Shri S. N. Kumar's averment that the said material was never disclosed to him nor put to him by anybody should not be accepted. The question of Chief Justice of India disclosing or putting to him the said material obviously does not arise, for he himself was not apprised of such further details and concrete facts or materials but the same constituted the basis on which the Delhi Chief Justice and the Union Law Minister acted leading to the impugned decision and therefore it was up to the Delhi Chief Justice to have apprised Shri S. N. Kumar of such material by telling him that the same is likely to be held against him and by seeking his explanation or version thereon and it was up to the Union Law Minister to see to it that such procedure was followed through the Delhi Chief Justice before advising the appointing authority to act on the same. The record does not show that anything of the kind was done and in that sense also there was no full and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Governor of State of Bihar whereafter he resumed work as the Chief Justice. By the impugned Notification dated January 19, 1981 the President, after consultation with the Chief Justice of India, was pleased to transfer him as the Chief Justice of the High Court of Madras with effect from the day he would assume charge of his office. It is this transfer that is being challenged by Shri K. B. N. Singh and other petitioners on four or five grounds, namely, (a) Article 222(1) does not refer to a Chief Justice and hence the impugned transfer is outside its purview; (b) since the said article properly construed covers only consensual transfers the impugned transfer, which is admittedly non-consensual is bad in law; (c) it has not been effected in public interest; (b) it has been effected without full and effective consultation contemplated by Article 222(1) and (e) the procedure followed in effecting the same did not ensure fair play in relation to him and the transfer is punitive in character. On behalf of the contesting respondents, amongst whom is included the Chief Justice of India who has been impleaded as party-respondent 2, the challenge is refuted under each of the heads. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the President and the Chief Justice of India before an order under that article can be made. Chandrachud, J. (as he then was) has observed (at SCR page 456 of the Report) thus : (SCC pp. 229-30, para 43) Article 222(1) postulates fair play and contains built-in safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice. Thirdly, he Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge of this constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment and therefore bad in law. It was also contended that no reasons or grounds necessitating or justifying the transfer nor materials in support thereof were ever disclosed or discussed with Shri K. B. N. Singh by anyone on behalf of the transferring authority or by the Chief Justice of India, that the advanced age and serious illness of his mother and his other difficulties were not properly considered and as such the procedure followed lacked fair play and for all these reasons the impugned transfer deserves to be quashed or set aside. 674. In view of the aforesaid contentions raised by the counsel for the petitioners it will be necessary to indicate briefly the relevant material on the record and ascertain what facts or aspects emerge clearly therefrom so as to adjudicate upon the validity or otherwise of the grounds of attack levelled against the impugned transfer. The entire relevant material requiring analysis and consideration consists of; (a) self-contained comprehensive affidavit dated September 16, 1981 of Shri K. B. N. Singh filed after he was transposed as a co-petitioner containing all the relevant averments and submissions in support of the challenge; (b) co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the correspondence at item (f) above, the following additional facts or aspects emerge clearly : (3) that transfers of some of the Chief Justices had been engaging the attention of the Chief Justice of India for the past few months, and he had made personal inquiries in this behalf and had met several lawyers and Judges of the concerned High Courts and on the basis of the data which he had collected and which he had considered with the greatest objectivity he had suggested transfers of certain Chief Justices including that of Shri K. B. N. Singh (vide letter dated December 7, 1980); (4) that initially on December 7, 1980, the recommendation was to transfer Shri K. B. N. Singh to Rajasthan High Court to take the place of Shri K. D. Sharma, Acting Chief Justice there, who was proposed to be transferred as the Chief Justice of the Kerala High Court, but after the Union Law Minister had pointed out certain difficulties in the chain of the connected transfers, the Chief Justice of India gave a fresh thought to the problem and by about December 20, 1980 in supersession of his previous proposals the Chief Justice of India recommended that Shri M. M. Ismail Chief Justice of the Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed to transfer Shri M. M. Ismail to Kerala and that he (Shri K. B. N. Singh) may have to go to Madras; on further query as to the reason for it, the Chief Justice of India referred to Government policy but further specifically conveyed to him that it was proposed to transfer Shri M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place; during the telephonic talk Shri K. B. N. Singh told the Chief Justice of India that his mother was seriously ill and bedridden and was not in a position to move out of Patna and accompany him to Madras and further told him that if his transfer was insisted upon he would prefer to resign whereupon the Chief Justice of India requested him not to act in haste and to give the matter a close thought; the Chief Justice of India also added that he (Chief Justice) was making a note of the personal difficulty mentioned by him and that it will have to be taken into consideration before a final decision was taken; the Chief Justice of India also requested him to go over to Delhi to discuss the question of his transfer. During the meeting that took place at the residence of the Chief Justice of India on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and objectively before coming to the conclusion that he should be transferred to Madras; he has further stated that the paramount consideration in the impugned transfer was public interest and that it was not by way of any punishment at all and that he came to the conclusion on a dispassionate assessment of the relevant facts and circumstances, including the language difficulty involved, that Shri K. B. N. Singh was suited for being transferred to Madras High Court and that it was necessary so to transfer him. The Union of India through the counter- affidavit of Shri Kankan has denied that the impugned order was passed without effective consultation between the President of India (meaning acting on the advice of Council of Ministers) and the Chief Justice of India and asserted that relevant considerations were taken into account by the President (acting as above) and that the impugned transfer as been made only in public interest and is not punitive in character. 678. To the aforesaid facts or aspects that emerge clearly from the relevant materials on the record two more facts will have to be added as having come on record through the statements made by the learned Solicitor- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanism or modality of procedure that ensures complete insulation against executive interference, could be a punitive transfer in the sense of having been effected with some oblique motive whereas a selective transfer in an appropriate case for strictly objective reasons and in public interest could be non-punitive, with the result that each case of transfer, whether based on a policy or a selective transfer, will have to be judged on the facts and circumstances of its own for deciding whether it is punitive in character in the sense of having been effected with some oblique motive or not. In the instant case, having regard to the facts mentioned at Nos. 1 and 2 above, the impugned transfer must be regarded as a selective transfer and not based on the policy in the contemplation of the Union Government, notwithstanding the reference to 'Government Policy' made by the Chief Justice of India during his telephonic talk with Shri K. B. N. Singh on January 5, 1981. Since the impugned transfer order in the ultimate analysis is of the transferring authority (the President) this Court wanted to know from the learned Solicitor-General as to what were the reasons which prompted the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stified for reasons given by the Chief Justice of India and valid under Article 222(1) but at the same time accepting his advice and recommendation amounted to taking a step forward in the direction of their intended policy. But, even if it were assumed at the highest that the two parties to the consultation (the transferring authority and the Chief Justice of India) had different reasons for agreeing to the ultimate result this cannot vitiate the consultation contemplated by Article 222(1), for, consultation, as has been pointed out by this Court in Sankalchand Sheth case (Union of India v. Sankalchand Himatlal Sheth, , requires the parties thereto to make their respective points of view known to each other and discuss and examine the relative merits of their views and as has been put aptly by Krishna Iyer, J. at SCR page 496 of the report (SCC p. 268) : Consultation is different from consentaniety. They may discuss but may disagree; they may confer but may not concur. But, apart from this aspect of the matter it seems sufficiently clear that the impugned transfer has been a selective transfer in the instant case and it will have to be decided whether it properly falls within Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of one of the premier High Courts in the country. It is difficult to countenance any suggestion that either of these considerations which weighed with the Chief Justice of India does not serve public interest. The first contention, therefore, must be rejected. Coming to the punishment aspect strenuously pressed by counsel for Shri K. B. N. Singh I would like to observe that it will not be correct to draw an inference of the concerned Judge's connivance or complicity in every case where persons close to him exploit their proximity to him while handling their matters in the High Court and in the absence of any connivance or complicity on his part, such exploitation of close proximity would not imply any reflection on the Judge concerned. It is conceivable that undesirable activities are indulged in without his knowledge or consent - any even against his wishes and sometimes despite counter measures adopted by him, and yet such exploitation of close proximity and the undesirable activities would spoil the atmosphere and lead to dissatisfactory working conditions in the High Court. In such a case if the atmosphere has to be improved and dissatisfactory working conditions have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective consultation has been put in issue but here the contesting respondents' case on that aspect does not rest merely on the recital to be found in the impugned notification but they have produced sufficient material on record to show that there was full and effective consultation as contemplated by Article 222(1) before the impugned order was made. On the question as to whether there was consultation between the transferring authority on the one hand and the Chief Justice of India on the other and if so, what transpired during such consultation Shri K. B. N. Singh obviously has no personal knowledge and one will have to consider what one or both the parties to the consultative process have to say on the matter. It is well known that in writ proceedings the affidavits, counter-affidavits and rejoinder-affidavits filed by the parties constitute not merely their pleadings but also partake of the character of evidence in the case and it is from this angle that the counter-affidavits filed on behalf of the contesting respondents, particularly that of the Chief Justice of India, a party to the consultative process, will have to be examined. Keeping the recital about the consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objectivity has been made, itself states that the same was written in furtherance of the discussion which both of them had on the previous day i.e. on December 6, 1980, on many an important matter concerning the High Courts. It was also argued that the statement of the Chief Justice of India in his counter-affidavit that he had discussed the question of impugned transfer with the President of India is vague inasmuch as it has not been clarified as to with whom from the side of the transferring authority he had these discussions, whether with the Union Law Minister or with the Prime Minister or with the President himself personally; this argument has also to be rejected, for the relevant correspondence disclosed by the Union Government clearly shows that the Chief Justice of India had these discussions about the impugned transfer both with the Union Law Minister and the Prime Minister and neither the Chief Justice of India nor Shri Kankan has suggested that the Chief Justice of India had discussed the question personally with the President of India. When the correspondence indicates clearly the two functionaries from the side of the transferring authority with whom the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned transfer as contemplated by Article 222(1) before the effective decision thereon was taken, and if the consultation has been full and effective as contemplated by Article 222(1), as is shown by the material produced on record, the contention that the normal procedure ought not to have been reversed and the proposal should have emanated from the President and not from the Chief Justice of India as is the case here loses its significance. Moreover, there is no hard and fast rule as to from whom a proposal for transfer should emanate. 682. On the last aspect as to whether the procedure followed by the Chief Justice of India ensured fair play in relation Shri K. B. N. Singh or not the material on record clearly shows that the Chief Justice of India had discussed all the relevant aspects concerning the impugned transfer with Shri K. B. N. Singh including his personal difficulty pertaining to his mother's advanced age and serious illness. That the Chief Justice of India took a different view about it does not mean that any unfair play was involved. After all in his view public interest outweighed the considerations of personal difficulty as well as the language difficulty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by law and, until so determined, such compensatory allowance as the President may by order fix. It is obvious that such an order fixing the compensatory allowance could follow and would have followed in the instant case within reasonable time but here the occasion to make such order got postponed because of the stay of transfer that was ordered by this Court. 685. In the result it is clear that the impugned transfer must be held to be a valid transfer under Article 222(1) of the Constitution. 686. Before parting with these cases I would like to place on record my sense of appreciation and gratitude to all the learned counsel who have rendered great assistance to the Court by arguing their respective points with exceptional ability and skill. I have always held the view that the quality of judgment rendered by a Court varies in direct proportion to the quality of assistance received by it from counsel appearing before it and whatever little I have been able to do in these cases it is mainly due to the excellent assistance received from counsel and I thank them. At the same time I cannot help keeping on record a feeling of uneasiness which I entertained during the hearing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dict - which it almost did - on the high constitutional functionaries involved by holding a trial by Press ? The disclosure, which became necessary in the Highest public interest of administration of justice - for seeing that injustice was not perpetrated and justice was meted out to high judicial functionaries under the Constitution, was not intended for being used for such purpose. Such behaviour of a section of the Press has been most distressing and has unnecessarily affected the image of Judiciary and the high constitutional functionaries involved. 688. In conclusion I would pass the following order : (1) Writ Petitions in Transferred Cases Nos. 19 to 22 of 1981 are allowed. (2) The impugned Circular letter dated March 18, 1981 is quashed and struck down as impinging on judicial independence and as being violative of articles 222(1) and 14. (3) In future extensions to sitting Additional Judges should normally be for two years and no extension to any Additional Judge for less than a year be ever granted.(4) The decision to drop Shri S. N. Kumar is quashed and his case is sent back to the President for reconsideration and passing appropriate orders after the requisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted March 18, 1981, some events occurred which may be briefly noticed. The initial term of appointment of three Additional Judges of Delhi High Court, Mr. O. N. Vohra, Mr. S. N. Kumar and Mr. S. B. Wad expired on March 6, 1981, and each of them was appointed as an Additional Judge for a period of three months. This short-term extension presumably provoked Shri J. L. Kalra and some others, practising advocates, to file Writ Petition No. 636 of 1981 on March 26, 1981, in the High Court of Delhi impleading Union of India as the sole respondent. A number of prayers have been made in this petition, one which deserves mention is that a direction be issued that Shri N. N. Goswami, Shri Sultan Singh and Shri O. N. Vohra, three Additional Judges of the High Court of Delhi be appointed as permanent Judges and a further direction that the term of Shri S. N. Kumar and Shri S. B. Wad, Additional Judges functioning in the same Court be extended for a period of two years. By an order made by this Court on May 1, 1981, his writ petition stood transferred to this Court and is registered as Transferred Case No. 21 of 1981. 692. As a sequel to the issuance of the impugned circular dated March 18, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, were impleaded as respondents 4 and 5. Of the two Additional Judges so impleaded respondent 5 Shri S. N. Kumar has participated in the proceedings and has appeared through his counsel Shri R. K. Garg. The principal question raised was that independence of judiciary being the basic and fundamental feature of our Constitution, any action of the executive which would be subversive of the independence of judiciary, must be declared unconstitutional. It was stated that the circular of the Law Minister of March 18, 1981, directing the Chief Ministers of States to obtain consent of an Additional Judge for being posted as permanent Judge in other High Court giving him an option to disclose his preference limited to three stations and a similar consent to be obtained in advance from a person to be recommended for appointment as a Judge of the High Court is subversive of the independence of judiciary. It was submitted that the extension of the term of an Additional Judge or his appointment as a permanent Judge cannot be left to the unfettered discretion of the executive because it would make a serious inroad on the independence of judiciary. Another important contention raised in the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the strength of the Delhi High Court was raised in June 1979, and a proposal of the Chief Justice of Delhi High Court for sanction of two extra judges was approved. Short-term appointments were sought to be justified on the plea that there were valid reasons for such short-term appointments and privilege was claimed against disclosure of papers relating to appointment of Additional Judges. It was specifically denied that the circular was meant to be utilised for transfer of Judges circumventing the requirements of Article 222. It was stated that complaints have been received about the prejudicial attitude of certain Judges including Additional Judges, bred by kinship and other local links and affiliations. Political links have also been mentioned in certain cases and various State authorities have expressed their reservations about continuance of some Additional Judges. These matters were generally mentioned to the constitutional authorities. There is an averment in the affidavit that it is not the intention of the Government to appoint every Additional Judge in another State. This is specifically referred to because a serious controversy developed that the Government wants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initial term of two years on March 6, 1981. The incorrect averment in the petition has found its place in an order made by the Vacation Judge on June 6, 1981. At the appropriate place, it will be pointed out that Chief Justice of Delhi High Court had, for his reasons, declined to recommend appointment of Shri S. N. Kumar as an Additional Judge on the expiry of his first term on March 6, 1981. 695. As almost identical contentions have been raised by Mr. Kankan in the various affidavits filed by him in every case, it is not necessary to recapitulate them here except recalling one averment made in his counter- affidavit filed on July 6, 1981, in reply to the petition filed by Shri Iqbal M. Chagla and others in Bombay High Court because it was the subject- matter of debate. In para 9(VII) it is stated that the data collected pursuant to the circular issued by the Law Minister would be made available to the Chief Justice of India, Chief Justice of the High Court concerned and the Governor of the State. The submission was that the circular was issued for data collection is a subterfuge resorted to, to provide an innocent cloak to a dagger aimed at independence of judiciary. 696. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fundamental and basic feature of the Constitution. It was stated that if the consultation itself is to provide a reliable safeguard agains arbitrary and naked exericse of power against judiciary, the procedure of consultation must be so extensive as to cover all aspects of the matter and it must be made so firm and rigid that any contravention or transgression of it would be treated as mala fide or subversive of independence of judiciary and the decision can be corrected by judicial review. Therefore, at the outset it is necessary to be properly informed as to the concept of independence of judiciary as set out in the Constitution. 697. The entire gamut of arguments revolved principally round the construction of Articles 217 and 224 in one batch of petitions and Article 222 in another batch but the canvas was spread wide covering various other articles of the Constitution, analogous provisions in previous Government of India Acts, similar provisions in other democratic constitutions and reports of Law Commission. Rival constructions canvassed centred upon the pivotal assumption that independence of judiciary is a basic and fundamental feature of the Constitution which has it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the interpretation put on some of those provisions by the decisions of this Court. It was urged that independence of judiciary has been put beyond the plea of controversy in the Court but this Court must spell out its contours and limits, the fringes and the horizon, so that wherever an intrusion takes place or an erosion is threatened it can be checkmated by judicial review. 700. A reference to some of the important provisions of the Constitution would bear repetition though they have been enumerated at length in Sheth case . Taking cue from the Act of Settlement of the United Kingdom and Section 220(2) of the Government of India Act, 1935, whereby tenure of Judges was altered from King's pleasure to one during good behaviour, in U.K. and India respectively, Article 217(1) and Article 124(2) ensure tenure during good behaviour up to the age of 62 and 65 years respectively to the High Court and Supreme Court Judges. Article 202(3)(d) and Article 112(3)(d)(i) provide that expenditure in respect of the salaries and allowances of High Court Judges and the salaries and allowances and pensions payable to Judges of the Supreme Court of India is charged on the Consolidated Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from State of W.B. v. Nripendra Nath Bagchi , and ending with Samsher Singh v. State of Punjab (Samsher Singh v. State of Punjab, : 1974 Lab IC 1380 1974 2 Lab LJ 465), it has been authoritatively laid down that in matters concerning the conduct and discipline of District Judges, their further promotion and confirmations, disputes regarding their seniority, their transfers, the placing of their services at the disposal of the Government for ex cadre posts, considering their fitness for being retained in service and recommending their discharge form service, exercise of complete disciplinary jurisdiction over them including initiation of disciplinary inquiries and their premature retirement, the members of the subordinate judiciary are under the direct control of the High Court. In Samsher Singh case (Samsher Singh v. State of Punjab, : 1974 Lab IC 1380 1974 2 Lab LJ 465), the learned Chief Justice observed : (SCC p. 854, para 78) The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. It has been said that subordinate judiciary have no two masters. 703. After reviewing all these prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n immunised from any discussion in the Parliament or the Legislature of a State and by the sword of Contempt of Courts Act from public criticism, it remains within its insulated vaults and more often has been found to be utterly unaware of the mores of the day. Conceding that independence of judiciary must be ensured and its immunity from executive and legislative overt and covert pressures or intrusions, must be guaranteed in larger public interest, the role of judge-power and the immunity of the judiciary must be studied with aware allegiance to the scheme and sweep of the Constitution, with insightful homage to the soul of the Paramount Parchment and with sociological appreciation that our economic and political order, of which the legal order is but a juridical reflection, is sharply pluralist. The apparatuses of activist Justice, working under such societal strains and stresses and charged with engineering progressive change through the law, may have to enjoy more than traditional functional freedom. For, in a dynamic democracy, with goals of transformation set up by the Constitution, the judge, committed to uphold the founding faiths and fighting creeds of the nation so set f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimately converging on realisation of constitutional goals. 708. Attention was also drawn to Judges on Trial by Shetreat, 1976 Edn., and after reading out the struggle for judicial independence, pointed reference was made to the fact that since Coke's disgrace 'the Crown could no longer expect to obtain the moral support which it had hitherto received from decisions pronounced by the Bench of the judges who were comparatively at least, which the men who held office subsequently to Coke's disgrace, independent of the favours and the anger of the Crown'. 709. Nor independence of judiciary is some a priori concept, a fact when judges attempt on their own insulation is occasionally clouded or overlooked. Independence of judiciary under the Constitution has to be interpreted within the framework and the parameters of the Constitution. There are various provisions in the Constitution which indicate that the Constitution has not provided something like a 'hands attitude' to the judiciary. The power of appointment of High Court Judges and the Judges of the Supreme Court vests in the President and the President being a constitutional head, he is constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reedom, of course, after entering the office, from any overt or covert pressure or interference in the process of adjudicating causes brought before them and to this end they are ensured tenure, pay, pension, privileges and certain basic conditions of service. The judiciary like any other constitutional instrumentality has, however, to act towards attainment of constitutional goals. This in one sense is conceded by Mr. Seervai who led on behalf of the petitioners when in his Sir Chimanlal Setalvad Lectures styled : 'The Position of the Judiciary under the Constitution of India ', he tersely observed as under : The Court is essentially a check of the past upon the present. But it is the present that represents the will of the people and it is that will that must ultimately be given effect in a democracy. If the democratic bases of our system are to be respected, the review power of one non-democratic organ in our Government should be exercised with self-restraint. It would thus unquestionably appear that the independence of judiciary is not to be determined in all its ramifications as some a priori concept but it has to be determined within the framework of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government must work towards realisation of constitutional goals and the judiciary has to be inspired by the values enshrined in the Constitution if rule of law is to run akin to rule of life and a feudal society is to be transformed into an egalitarian society by the rule of law, an introduction of the element of reflection of popular will so as to make judicial system more viable and effective as an instrument of change is inevitable and total aloofness of judiciary is inconceivable. While undoubtedly political packing must be abhorred, in putting the independence of judiciary on pedestal one cannot lose sight of the fact that the judiciary must keep pace with the changing mores of the day, its decision must be informed by values enshrined in the Constitution, the goals set forth in the fundamental law of the land, peoples' yearning desire for a chance for the better and promised millennium. An activist role in furtherance of the same is a sine qua non for the judiciary. If value packing connotes appointment of persons otherwise well qualified as required by the Constitution but having the additional qualification of awareness of the high priority task of eradication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appointive process of the federal judiciary in the USA but the power still vests in the President whose nomination must be ratified by the Senate meaning thereby the power is in the executive with a legislative veto over it. In the United Kingdom Lord Chancellor is the queen's chief adviser on the selection. Lord Chancellor presides from the Woolsack over the House of Lords. He is a member of the Cabinet. He is also head of the judiciary and thus combines in his person the threefold function of executive, legislative and judicial. Even though thus the power is in executive, Richard M. Jackson in his Study on the Machinery of Justice in England, noticed that political considerations have hardly entered the process of judicial selection since 1907. In France the president of the Republic who is charged by the constitution to be guarantor of the independence of judicial authority , selects the judges. They are chosen either by the 11 member of Counseil Superieur de la Magistrature in the case of Cour d' Appeal and Cour de Cassation, or by the Minister of Justice who may consult with, or receive advice from, the High Council in the case of lower courts. The High Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eminence rather than judicial quality and he illustrates this statement by pointing out that Lord Halsbury used his power of nomination to elevate members of his own party. As a via media, he suggests a compromise by recommending that the appointment should be made on the recommendation of the Minister of Justice with the consent of a standing committee of judges which would represent all sides of their work. Be that as it may, this bird's eye view of the world phenomena should be sufficient to convince us that power to appoint judges where election method is eschewed is always vested in the executive and that it has not been found to be subversive of independence of judiciary. At this stage it would be advantageous to recall that in the 80th Report of the Law Commission of India, it has been frankly admitted that most of the High Courts to which a reference was made by the Law Commission about the existing system of appointment of Judges, have in their replies to the questionnaire, expressed the view that the existing system is by and large sound. Therefore, it is not possible to accept a sweeping statement that the vesting of the power of appointment in the executive is subve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the present discussion the importance is of the word 'concurrence' in the proposed amendment. If the amendment had been accepted no appointment of a Judge of High Court could be made unless the Chief Justice of India concurred in the appointment. In other words, if the Chief Justice of India does not approve the proposal, he would have a veto on the proposal and his lack of concurrence would kill the proposal. The power of appointment which at present vests in the President would thus stand transferred to the Chief Justice and if such a situation emerged it would have accorded great strength to the submission. Be it noted that this amendment was negatived. In other words, the Constituent Assembly in terms rejected any veto to be vested in the Chief Justice of India in the matter of appointment of a High Court Judge. And it is too late in the day to contend that debates in Constituent Assembly do not provide an aid to construction of articles of Constitution or it is impermissible to refer to them (see State of Mysore v. R. V. Bidap ; Union of India v. H. S. Dhillon and Sagnata Investments Ltd. v. Norwich Corporation [1971] 3 W.L.R. 133, 137 : [1971] 2 All E.R. 1441(CA)) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is left to his discretion or excepted from that field by this article. After referring to the debates in the Constituent Assembly, Krishna Iyer, J. concluded as under : (SCC p. 885, para 154)We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. These exceptional situations need not be enumerated because they do not touch upon the subject under discussion. Add to this the consistent view of this Court that the position of the President under the Indian Constitution is akin to the position of the Crown under the British Parliamentary system (see Ram Jawaya Kapur v. State of Punjab A. Sanjeevi Naidu v. State of Madras U. N. R. Rao v. Indira Gandhi (1971 Supp SCR 46 : ). In the Case of U. N. R. Rao, the Constitution Bench held that Article 74(1) was mandatory and, therefore, the President could not exercise the executive power without the aid and advice of the Council of Ministers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exercise of his functions, but it went on to add except insofar as he is required by this Constitution to act in his discretion . A note was appended to this clause which referred to the discretionary powers of the President. Certain special responsibilities were set out in the memorandum in respect of which, according to the note, President was required to act in his discretion. While discharging his functions in respect of his special responsibilities wherein he was required to act in his discretion, a Council of States whose composition was set out in the memorandum was proposed to be set up. At a later stage, a suggestion was made that the subject-matter of appointment of Judges of High Court and Supreme Court should be included in the instrument of instructions. The draft of instrument of instructions was also prepared by the Drafting Committee. The instrument listed six categories of appointment in regard to which the President was required to consult the Advisory Board. Of the six categories, two are : The Chief Justice and other judges of the Supreme Court and the Chief Justice and the other Judges of the High Court. Finally the very idea of instrument of instructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who acts on the advice of the Council of Ministers in exercise of his function, this Court held that the President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. It was, therefore, held that he cannot act on the advice of his ministers. Once the function of the President while exercising power under Article 217(3) is held to be judicial it follows as a necessary corollary that the President has to act on his own after consultation with the Chief Justice of India but he cannot act on the advice of the Council of Minister because a person discharging a judicial or quasi-judicial function cannot act at the behest or dictate of some other authority. But it cannot be said that while exercising the power of appointment of Judges of the Supreme Court and High Courts, the President is either performing a judicial or quasi-judicial function. It is admittedly an executive function and howsoever one may like to wish away the interference of the Council of Ministers in the matter of appointment of Judges of High Courts and Supreme Court, the framers of the Constitution after having examined various aspects of the matter confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of 62 years : Provided that - (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and - (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession. Explanation. - For the purposes of this clause - (a) in computing the period during which a person has held judicial office in the territory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution corresponding to draft Article 200 was deleted by the Constitution (Seventh Amendment) Act, 1956 and present Article 224 was substituted in its place. By the Constitution (Fifteenth Amendment) Act, 1962 original Article 224 deleted in 1956 was reintroduced as present Article 224-A. 718. Article 217 confers power on the President to appoint a Judge of the High Court after consultation with the Chief Justice of India, the Governor of the State and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. The power to appoint a Judge of a High Court vests in the President but it is hedged in with a condition that it can be exercised 'after consultation with' the three constitutional functionaries set out in the article. The use of the expression 'after consultation with' instead of 'in consultation with' was harped upon to indicate that the expression 'after consultation with' means that the power of the President remains intact but before exercise of the power the duty is cast upon him to consult the three functionaries. If on the other hand the expression 'in consultation with' was us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frequently there are other matters relating to the person recommended which the State executive would alone be in a position to know and of which they may inform the Chief Justice. Such other matters may include factors such as the local position of the person proposed, his character and integrity, is affiliations, which may have considerable bearing upon his efficient functioning as a Judge and all these may not at all be within the knowledge of the Chief Justice of the High Court. Approaching the matter from this angle the Law Commission rejected the submission that the State executive should have no share in the decision-making process for appointment of a Judge of the High Court and ultimately expressed a considered opinion that where the Chief Justice of the High Court recommends a person for judgeship, the State executive should have an opportunity to offer its comments upon that recommendation but that such consultation with the State executive should be limited to other factors such as have been enumerated hereinbefore. It may be mentioned that this recommendation of the Law Commission was not accepted by the Government. The fact remain that even a body like the Law Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate and the Chief Justice of India holder of the highest judicial office in the country, were to be consulted before the President took the step of making an appointment under Article 217. When three such high constitutional functionaries participate in the process of consultation there would be a remote or minimal chance of some infirmity being overlooked or any vital consideration relevant to the process of appointment being ignored and the best man will be selected. In the ultimate analysis consumers of justice are interested in securing undiluted justice free not only from bias or subservience but free from predilections, aberrations, preconceived notions and personal philosophies of incumbent of the office of a Judge. In a country ruled by rule of law, respect for the law is a sine qua non and the respect for law would increase and enhance directly in the proportion to the work of Judges in law courts which would inspire confidence. Mr. Justice Arthur T. Vanderbilt in the Challenge on law Reforms (Princeton : Princeton University Press, 1955), pages 4 and 5 vividly stated which bears quotation : ... it is in the courts and not in the legislature that our citizens primarily fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India for appointment a sine qua non describing it as a dangerous proposition has been noticed. What is specifically rejected cannot be brought in by brought in by the back-door. 724. Article 217 on its own language and intendment repels the contention. The President is under constitutional obligation to consult the three constitutional functionaries. Each is on par. They are coordinate authorities. There is no relative hierarchy. At any rate, the appellate jurisdiction of the Chief Justice of India functioning as a Judge of the Supreme Court over a decision of the Chief Justice of the High Court would not provide an indicium that the view of the Chief Justice of India in administrative matters has predominance or overriding effect over the view of the Chief Justice of the High Court. It must be recalled that in the process of drafting the Constitution there was some suggestion that the Supreme Court shall have administrative supervision over the High Court and this suggestion was rejected. Initiation of proposal for appointment of a High Court Judge is not a judicial function of the Chief Justice of the High Court. While performing this function Chief Justice of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the contention about primacy, because unlike Article 217 and similar to Article 222, Chief Justice of India is the only constitutional functionary required to be consulted by the President while discharging his function under Article 217(3). 726. Mr. Seervai in this context urged that the Chief Justice of India has been given the position of primacy because his training as a Judge gives him a judicial outlook which would help him to consider the appointment of Judges in a judicial spirit. Further, the Chief Justice of India having reached the highest position in the judiciary is free from even a suggestion that his action was actuated by a desire to secure a promotion for himself in the judicial hierarchy. Add to this the consideration that if parochial and local considerations are to be excluded in the appointment of High Court Judges, the Chief Justice of India is more likely to exclude such considerations than the Chief Justice of a High Court. To say that high constitutional functionaries like the Chief Justice of a High Court would not be free from such shortcomings set out above and that the Chief Justice of India would be free from such shortcomings appears to be an unw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view of the Chief Justice of India when consulted under Article 217 would have primacy over the view of the Chief Justice of the High Court. 727. Interestingly a reference in passing may be made to the divergent views on this aspect even amongst the petitioners. Article 222 which confers power on the President to transfer a Judge of the High Court to another High Court provides that the power to transfer can be exercised in consultation with the Chief Justice of India. While hearing the petition challenging the transfer of Chief Justice K. B. N. Singh of the Patna High Court to the Madras high Court, Dr. Singhvi appearing for Mr. K. B. N. Singh vehemently traversed the argument of Mr. Garg that the view of the Chief Justice of India must have primacy and it was said that no such primacy as is contended for can be accorded to the view of the Chief Justice of India. Specific submission was that if the proposal for transfer is initiated by Chief Justice of India it would be violative of Article 222. If Article 222 which confers power on the President to transfer a Judge from one High Court to another High Court is hedged in with a condition that it can be exercised after cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing in the language of Article 217 that the proposal cannot be initiated by any of the four constitutional functionaries set out in the article. If elaborate provision was made for appointment of a High Court Judge with a view to securing the appointment of the best available man at the relevant time it would not be conducive to effectuating the purpose underlying the article if the proposal can be initiated by the Chief Justice of the High Court alone. Cases are not unknown where the Chief Justice of the High Court having his own philosophy adopted the same as his yardstick to determine suitability for appointment and thereby excluded from his consideration a sizeable section of the Bar. Similarly, the Chief Justice of India can also initiate a proposal because if he finds someone practising in the Supreme Court as one suitable for appointment to the High Court, we see nothing objectionable or improper in his initiating the proposal. Similarly, there could not be a blanket embargo on the State executive initiating the proposal. We agree that the State executive should not make its own recommendation and forward it directly to the Centre. The State executive initiating the proposa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h other Judges when deemed necessary to appoint. If the number was fixed by the Constitution, every time a constitutional amendment would become necessary if more judges were required to be appointed. Pragmatism and flexibility informed the approach of the Constituent Assembly in deleting the proviso and thereby removing the obligation of the President to fix maximum number of Judges in relation to each High Court. Article 224 makes provision for appointment of Additional Judges. The concept of Additional Judges also figured in the proviso to draft Article 192. Therefore, when the draft Constitution envisaged appointment of Additional Judges, the expression 'Additional Judge' may be understood in contradistinction to permanent Judge or an acting Judge or recalling of a retired High Court Judge. The expression 'permanent Judge' in relation to High Court Judge is to be found in Article 220 which prohibits a permanent Judge of a High Court from pleading or acting in any court or before any authority in India except the Supreme Court and the other High Courts. One can legitimately say that the framers of the Constitution envisaged appointment of an Additional Judge in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l those qualifications save and except saying that the qualifications for a Judge to be appointed under Article 217 or an Additional Judge to be appointed under Article 224(1) are the same. However, the tenure of a Judge appointed under Article 217 and one appointed under Article 224 materially differ. A High Court Judge appointed under Article 217 is entitled to hold office until he attains the age of 62 years, but in the case of an Additional Judge the period has to be specified and the maximum period that can be specified by the President for which he can hold office is two years. The view that the expression 'Judge' in Article 217 includes an Additional Judge is reinforced by the fact that while introducing Article 224 by Constitution (Seventh Amendment) Act, 1956, a consequential amendment was inserted in Article 217. In the absence of the amendment, an Additional Judge would enjoy tenure till he reached the age of 62 years. In order to avoid any confusion in this behalf the words shall hold office, in the case of an Additional Judge or acting Judge, as provided in Article 224, and in any other case, until he attains the age of 62 years were added in Article 217. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was filed in this Court. In this case construction of Article 224-A came up before this Court. Two contentions were urged on behalf of the appellant. They were : (i) that a person requested to sit and act as Judge of the High Court under Article 224-A was not a Judge of the High Court for the purpose of Section 80-A of the Representation of the People Act, and (ii) that even assuming that he was a Judge for the purpose of Section 80-A of the Act, the election petition could not, after it had been entrusted to a permanent Judge, be allocated to a Judge appointed under Article 224-A. This Court rejected both the contentions but finally observed as under : (SCC p. 137, para 23). . . All the same, looking to the special facts and circumstances of this case, we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned Judge of the High Court who may be assigned for the purpose by the Chief Justice of that Court. It seems indeed desirable that election petitions should ordinarily, if possible, be entrusted for trial to a permanent Judge of the High Court even though we find that Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby that the prerequisites, existence of which enabled the President to exercise the power of appointment of Additional Judge, continue to exist, is he entitled to be reappointed as a matter of right ? Could he be deemed to be permanently appointed ? Answer posed on the other side was that he had no right to be considered nor is he deemed to be appointed as permanent Judge even if he is available and it would open to the President to appoint anyone else without considering the case of the Additional Judge whose tenure has come to an end. In other words, he has neither weightage nor a right to be considered. He is on par, according to the learned Attorney-General, with any other person in the Bar or in the subordinate judiciary. 735. One submission may be disposed of at the outset. Conceding the contention of Mr. Seervai that the position, powers, privileges and jurisdiction of permanent and Additional Judges of High Court and the qualifications for their appointment are the same, but the marked contrast in the raison d'etre of their appointment and the tenure for which they are appointed cannot be overlooked. The present agonising situation arose from a common understanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time as a Judge of the High Court. Whatever canon of construction one may resort to, it is not possible to hold that the consultation in respect of an Additional Judge who has been once appointed and whose tenure has expired and being eligible, is being considered for appointment afresh for a fresh tenure, the relevant consideration which would govern the decision for appointment would be different, save and except saying that the constitutional functionaries will have the additional benefit of the experience of the person concerned as a Judge of the High Court for the period he was appointed and he worked. 737. Three different contentions have been advanced in this behalf and each one will have to be separately examined. One submission of Mr. Garg strongly supported by Mr. Seervai, and learned Advocates for the other petitioners is that the Additional Judge is not on probation and, therefore, his eligibility or all those relevant considerations in service jurisprudence which are taken into account while offering a substantive appointment of a probationer could not be brought into consideration. The contention is that his qualifications for being appointed as a judge have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered in priority or preference to any other person who can be picked up from the Bar or from the subordinate judiciary. Extreme illustrations were given to make good either point of view by both sides but the illustrations hardly if ever provide a reliable yardstick to interpret a constitutional provision. 738. In an emotionally surcharged voice we were told that there were more than 65 Additional Judges on April 1, 1980 all over the country whose fate is in balance and, therefore, the Court should be very careful and circumspect in putting such construction on Article 224 which would not leave these 65 Additional Judges to the vicissitudes of executive smile or frown. On the other hand we were told that the whole conspectus of the articles with which the Court is dealing with in these matters were debated over a long period in the Constituent Assembly and the trend indicates that speaker after repeatedly asserted that the mechanism for appointment of Judges must be so devised that the best in the country is available for this high constitutional office and that the checks and balances provided must be such as to weed out and eliminate the unworthies. It was, therefore, said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in Order XVII, Rule 2, Code of Civil Procedure namely that non-availability of counsel is not a ground for adjournment. Present malaise in this Court was also touched upon by him. Be that as it may, the Committee appointed by the Government presided over by the then Chief Justice of India, Shri J. C. Shah, extensively examined the question of mounting arrears in the High Courts and found that the inadequacy of number of Judges in each High Court is relatively a minor factor contributing to the mounting arrears but there are more weighty factors which are to be tackled with. 241. In a parliamentary democracy with a written Constitution in which three organs of the Government are clearly marked out, it becomes a primary duty of the State to provide for fair and efficient administration of justice. Justice must be within the easy reach of the lowest of the lowliest. Rancour of injustice hurts an individual leading to bitterness, resentment and frustration and rapid evaporation of the faith in the institution of judiciary. Two vital limbs of the justice system are that justice must be within the easy reach of the weaker sections of the society and that it must be attainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the system can be remedied by judicial process. There is no greater error than entertaining such unwarranted belief. Courts cannot cope with all infirmities in the system. That is the admonition of Frankfurter, J. I quote : In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of people's representatives. (Baker v. Carr 369 US 186, 270 : 82 S Ct 691 : 7 L Ed 2d 663 1962) Failure to perform duty of appointing adequate number of Judges in High Courts cast on the President by Article 216 would make him answerable to the Parliament and not to the Court. 742. The problem of arrears is much too complex to be referable to one single cause namely, inadequate strength. Obligate the President by a mandamus to appoint adequate number of Judges in High Courts and this intractable problem defying solution would evaporate like the morning dew, betrays woeful lack of appreciation of Parkinson's Law that large number of judges may result in further mounting of arrears. Not the number the system is cancer ridden. The justice delivery system of this country is utterly alien to the genius of this country. This is a smuggled s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide an entry door for becoming a Judge of a High Court under Article 217. Article 224 was for a specific and specified purpose. When the Constitution came into force in January 1950 present Article 224-A was Article 224-A. Article 224-A enables he Chief Justice of a High Court with the previous consent of the President to request any person who has held the office of a Judge of a High Court to sit and act as a Judge of the High Court. It was believed that whenever work-load in the High Court temporarily goes up, retired Judges of the High Court may be requested to sit and act as Judges of the High Court and the problem of work-load in the High Court can be solved. In 1956 it was found that this system has not worked satisfactorily. This becomes clear from the 'objects and reasons' set out in the Bill seeking to amend the Constitution by substituting Article 224 in its present form. Therefore, the present Article 244 was introduced and as pointed out earlier, it was meant to confer power on the President to increase for the time being the number of Judges in a High Court and to appoint Additional Judges to fill in the increased strength. This power can be exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a short time, a system of taking an undertaking from an Additional Judge, that if offered he will accept the permanent judgeship was commenced upon a note of the former Chief Justice of India, Mr. Wanchoo, though the practice does not appear to be universal. The tendency to return to the Bar after adorning the Bench for some time was to be thwarted. The undertaking was devised to meet this situation. This would however show that save in rare exceptional case, first appointment was as an Additional Judge. An Additional Judge will have a fixed tenure and can safely return to Bar with a perceptible added advantage because it was felt that there was no other way except to offer first appointment as an Additional Judge, and therefore a system of taking the undertaking was devised. But again save in rare exceptional cases an Additional Judge on the occurring of a vacancy in the permanent strength was always offered a berth. From this invariable practice, a firm belief, therefore, developed that an Additional Judge enters upon office with almost an unwritten albeit incontrovertible assurance to be appointed a permanent Judge. Howsoever strong the belief may be, it is not borne out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversies brought before the Court, a debate always ensues as to what was intended by the legislature in using a certain expression. 'A word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used'. (Holmes, J. in Towne v. Eisner, 245 US 418, 425 1918) Word when used in a certain context may mean a different thing than when used in a different context and therefore, while construing particular word or expression in a statute it is better to read the statute as a whole and ask oneself the question : 'In this state, in this context, relating to this subject-matter, what is the true meaning of the word ?' (Re Bidie (deceased), Bidie v. General Accident, Fire and Life Assurance Corporation, Ltd., [1948] 2 All E.R. 995, 998 : [1949] Ch. 121 : 1949 LJR 386(CA)) If this is true of an Act of Parliament, it is equally true of the fundamental law of the land, viz., the Constitution. 748. Aids to construction help in finding out the intendment of the provisions. It is the duty of the Court to ascertain the intendment of a provision which comes up f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of the Governor conferred by the Letters Patent imposed by the constitutional practice of the colony. The Privy Council again in British Coal Corporation v. King [1935] A.C. 500 : [1935] All E.R. 139 : (104) L.J. P.C. 58 : 153 LT 283 (PC)), after referring to its Constitution under the Act for the Better Administration of Justice in His Majesty's Privy Council and further referring to the provisions set out in the Act for the conduct of appeals, observed that the Judicial Committee as established by the Act after hearing the appeal could make a report or recommendation, to His Majesty in Council for his decision, the nature of such report or recommendation being always read out in the open court. Proceeding further it was held that even if the Judicial Committee of the Privy Council is regarded as a judicial body or court, all it can do is to report and recommend to His Majesty in Council by whom alone the order in Council, which is made to give effect to the report of the Committee, is made. Having determined the legal position of the Judicial Committee, it was further held as under to which specific reference was made : But according to constitutional convention it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance of the form of Government established in India by the Constitution but simultaneously referred to the conventions in the United Kingdom and other countries having similar political system being adjuncts of Parliamentary form of Government. 753. Implication but not the spirit arising from the Constitution is another aid to construction. After referring to some of the Canadian decisions, Sikri, C.J. pointed out in Kesavananda Bharati v. State of Kerala (1973 Supp SCR 1, 152 : ), that some of the judges in Canada have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution, i.e. with a Constitution similar in principle to that of the United Kingdom . Examining the submission in that case about implied and recalled the statement that the rule is established beyond cavil that in construing the Constitution of the United States, what is implied is as much a part of the instrument as what is expressed (AMERICAN JURISPRUDENCE (2d), Vol. 16, p. 251) and after reviewing a large number of foreign decisions it was observed that the concept of implications can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he powers of the Government are vested in different persons or bodies or where, in the words of Sir William Holdsworth, ( The Conventions of the Eighteenth Century Contitution , 17 Iowa Law Review, p. 162) there is a mixed Constitution. But conventions do presuppose the law and any convention contrary to the written context is of no validity. The conventions are built, in the first instance, on the foundation of law but once they are established, they tend to form the basis for the law. It may, however, be noticed that these rules of law which are conventions are a mere matter of practice and their effect must change with the changing circumstances of national life. That apart, what is sought is not enforcement of the convention in the court but its being invoked as an aid to construction of Article 224. Does it help in that behalf ? W. A. Wynes in Legislative, Executive and Judicial Powers in Australia, page 29, footnote 20, noticed that in the Commonwealth v. Colonial Combing, Spinning Weaving Co. Ltd. (1922 31 Commonwealth LR 421, 438-439), Isaacs, J. drew attention to the duty of the Judiciary to recognise and give effect to new positions and circumstances in the national ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the way in which the article has been worked, a constitutional convention has grown up that every Additional Judge right from the day of his entry irrespective of his two years' tenure would be deemed to be appointed as a permanent Judge or would be entitled as a matter of right to a renewal of his tenure till a permanent vacancy. Such a construction of Article 224 would run counter to the plain intendment of the Constitution and no such convention can be spelt out as would protanto amend Article 224. Nor any such implication can be raised that an Additional Judge is deemed to be appointed as a permanent Judge or he is entitled as of right to a renewal of his tenure till a permanent berth is found for him. 758. Frankly, there is some force in the submission that a practice has grown up for over last quarter of a century (1956-81) that whenever an additional judgeship is offered to a person, he accepts it in the reasonable belief that in course of time he would get a berth as a permanent Judge. It may generate hope in him and his expectations could be said to be well founded and reasonable more so it is, save in rarest of rare cases, invariably done so far. At the minimal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bling provision conferring power on the President to appoint Additional Judges to meet a specific situation, namely, a temporary increase in the work of the High Court or the arrears in the High Court. Ordinarily, therefore, the Constitution envisages appointment of permanent Judges. Permanent Judges are appointed to deal with the regular work of the High Court and the strength is fixed keeping in view the institutions and disposals and minimum work-load which each Judge is supposed to handle. When permanent strength of the High Court is fixed and there is a vacancy, it would mean that for the routine work of the High Court the number of Judges in inadequate and, therefore, it is incumbent upon the President to fill in the vacancy unless it can be made out that the work-load in the High Court does not justify the appointment. But if the permanent vacancy is not filled in and the President proceeds to appoint an Additional Judge, which can only be done if there is a temporary increase in the work of the High Court or if there are arrears, it would mean that the regular work is not sufficient for the sanctioned strength of permanent Judges and vacancy may remain unfilled, an Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment being non-severable from the main Act, the whole Act was invalid. The Chief Justice who presided over the Bench held that the word 'appointed' is used in the sense of assignment and the life tenure is not whittled down by making a specific appointment for a certain period. Views contrary to the view of the Chief Justice are also expressed but this decision hardly helps in resolving the problem posed in this case. 762. If the President even by a misconception of a situation, makes an appointment specified in Article 224 limited for a duration of two years, it is inconceivable that the appointee can ignore the tenure and claim to be appointed as a permanent Judge. Undoubtedly consultation for the purposes of Article 224 and for appointing a permanent Judge under Article 217 is of the same width and dimension and the constitutional functionaries involved in the process of appointment are all the same, nonetheless power of the President to appoint for a fixed duration in a given situation even if the situation is shown not to exist, cannot be understood to mean that the President had some other power under some other article and is deemed to have acted under that artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s than three years and not more than five years as the authority may specify. I fail to see how these would render any assistance in this case. Here the President has specifically set out in the warrant of appointment that the Judge is appointed as 'Additional Judge' for 'a period of two years'. Even if the prerequisite for exercise of power was absent and, therefore, it was an impermissible exercise of power under Article 224, there was no intention to appoint a permanent Judge which this Court by a deeming fiction can enforce. Doctrine of severability is not attracted. The intention not shown to be to appoint permanent, as two years' tenure furnishes contrary indication, the submission that Court must enforce it must be negatived. 763. I may then turn to the next submission incidental to the points under discussion. It was said that if an Additional Judge has to be appointed either for dealing with the temporary increase in the work of the High Court or for tackling arrears in the High Court the Constitution-makers believed that the situation has reached such a stage that an Additional Judge if appointed for a period of two years would be able to bring reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such appointment cannot be made for the purpose of making inquiry into the suitability, eligibility or fitness of the incumbent Additional Judge at the time of consideration of his appointment for a fresh term. In this behalf both the judiciary and the executive are in the same bracket. In the case of Mr. S. N. Kumar and Mr. O. N. Vohra, the Chief Justice of India recommended an extension for a period of six months in order to gain time to make inquiries in respect of complaints which appear to have been mentioned by the Law Minister in the correspondence. This is utterly impermissible. Chief Justice of India could not have recommended extension of six months, not for dealing with temporary increase nor for tackling arrears, but for gaining time to complete his inquiry. The Law Minister in his turn presumably must have advised the President to grant extension for three months. Such short-term appointments are wholly inconsistent and contrary to the clear intendment of Article 224 and unbecoming of the dignity of a High Court Judge. I am not prepared to believe even on a hypothetical case that in foreseeable future a situation may arise when an appointment of an Additional Judge in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egitimate opinion can be formed by all the constitutional functionaries that the temporary increase in the High Court or the arrears to tackle which the Additional Judge was appointed could be resolved to the satisfaction of all within a period of say one year, the duration can be of one year but not less than that in any case. 765. In passing it was briefly stated that there can be a short-term appointment when in a near future a vacancy in the permanent cadre of the High Court is likely to occur. That approach is hardly relevant because even if the Additional Judge is appointed, say for a period of one year, and a vacancy occurs within three months of his appointment, there is no bar in law in offering him the permanent appointment and if the work-load still justified, to appoint someone else as Additional Judge. 766. The stage is now reached where it would be appropriate to deal with the scope and content of consultation as envisaged by Article 217. It may be recalled that Article 222 also provides for consultation with the Chief Justice of India when the President proposes to transfer a Judge of a High Court to another High Court. The question posed is whether consultatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope and content of consultation may vary from situation to situation. The word 'consult' has been defined to mean 'to discuss something together, to deliberate', deliberation being the quintessence of consultation. The word 'consult' would take its colour and its content and scope will depend upon the context in which it is used. If the consultation is for appointment all those relevant considerations which enter the verdict before an appointment is made would be the subject-matter of consultation. If the consultation is for transfer of a High Court Judge under Article 222(1) the word 'consultation' would mean examination of all those relevant aspects to be presently mentioned including the consequences of transfer. Chandrachud, J. affirmed the observation in Chandramouleshwar Prasad v. Patna High Court, on what constitutes consultation within the meaning of Article 233(1). It reads as under : (SCC p. 63, para 7)Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the relevant facets of the subject-matter must be examined, evaluated and opined upon to complete the process of consultation. 767. Reverting to Article 217(1), the consultation is for the purpose of appointment of a judge of High Court. The constitutional functionaries to be consulted are the Chief Justice of the High Court, Governor of the State and Chief Justice of India. Attention must first be focussed on what are the relevant considerations apart from the qualifications prescribed in the Constitution while making a proposal for appointment of a High Court Judge. The questions, one would pose to oneself are : (i) does he satisfy the qualifications prescribed in Article 217(2); (ii) whether he is of sufficiently mature age which is generally considered a good guide for a sombre approach in a law court; (iii) is he of unimpeachable integrity; (iv) has he a spotless character; (v) is he a man of reliable habits; (vi) what is his equipment in law; (vii) does he subscribe to the social philosophy and values enshrined in the Constitution; (viii) does he suffer from any insurmountable aberrations; (ix) does he disclose a capacity to persuade and be persuaded; (x) would he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the decision in Sheth case (Union of India v. Sankalchand Himatlal Sheth, it is now the law of the land that wherever the President can exercise power in consultation with the Chief Justice of India or other constitutional functionaries, the consultation has to be on all relevant aspects which would enter the final verdict. All the parties involved in the process of consultation must put all the material at its command relevant to the subject under discussion before all other authorities to be consulted. Nothing can be kept back. Nothing can be withheld. Nothing can be left for the eye of any particular constitutional functionary. To recall the words of Justice Krishna Iyer (sic Justice Untwalia) in Sheth case (Union of India v. Sankalchand Himatlal Sheth, at SCR proposed action of transfer must be communicated to him and all his doubts and queries must be adequately answered by the Government. The President has, however, a right as rightly conceded by Mr. Seervai upon consideration of all relevant facts to differ from the other constitutional functionaries for cogent reasons and taken a contrary view. Chandrachud, J. in his judgment stated as under : (SCC p. 227, para 37)Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt Judge for the period for which he is appointed by the President under Article 224 ? What has to start is a process of appointment. The Chief Justice, when there is a clear vacancy, has to initiate the proposal for appointment. He may think of selecting someone from the Bar or from the subordinate judiciary. But what he initiates is a proposal for appointment. It is unthinkable that the Chief Justice of High Court would start a proposal for non-appointment for the first time. Such a situation is possible (sic) in case of an Additional Judge, an aspect to be presently examined. But save such a situation what happens is that the Chief Justice of the High Court thinks of certain names and ultimately reaches his own decision and initiates his proposal for appointment. This is a process of appointment. The proposal is forwarded to the State executive as consultation with the Governor is obligatory. Assuming the Governor does not agree, is it that the further examination of the proposal must come to an end ? That is not the constitutional scheme. The Governor may disagree or set out his valid reasons for disagreeing with the proposal of the Chief Justice but he cannot put an embargo o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. 770. How far the provision contained in Article 124 would be helpful in ascertaining the scope of consultation in Article 217 as also the contention about primacy of the opinion of the Chief Justice of India and the response to the argument on behalf of the respondents that the three constitutional functionaries to be consulted are coordinate authorities ? In fact, reference to Articles 124 and 126 is only incidental because the construction of these two articles did not figure directly in the contentions canvassed in these cases. Attention was drawn to them to point out that there are situations envisaged by the framers of the Constitution where the President, the highest executive in the country, may proceed to appoint Chief Justice of India, the highest at the apex of the judicial hierarchy, without consultation with any functionary in the judicial branch of the State. Article 124 provides for establishment and constitution of Supreme Court. Sub-article (2) provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it is rather difficult to accept the construction as suggested on behalf of the respondents that in making appointment of the Chief Justice of India the President is at large and may not consult any functionary in the judicial branch of the State before making appointment of Chief Justice of India. The expression 'may deem necessary' qualifies the number of Judges of the Supreme Court and High Courts to be consulted. What is optional is selection of number of Judges to be consulted and not the consultation because the expression 'shall be appointed after consultation' would mandate consultation. An extreme submission that the President may consult High Court Judges for appointment of the Chief Justice of India omitting altogether Supreme Court Judges does not commend to us, because the consultation with 'such of the Judges of the Supreme Court and of the High Courts' would clearly indicate that the consultation has to be with some Judges of the Supreme Court and some Judges of the High Courts. The conjunction 'and' is clearly indicative of the intendment of the framers of the Constitution. If there was disjunctive 'or' between Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble candidate for the office of Chief Justice of India and on account of personal bias would be disqualified from being consulted. There is no warrant for such an extreme position and the reflection on the Judges of the Supreme Court is equally unwarranted. On the construction as indicated above there will be positive limitation on the power of the President while making appointment of Chief Justice of India and it is not necessary to read any limitation on the power of the President under Article 126 while making appointment of a Judge of the Supreme Court as acting Chief Justice of India. But the observation is incidental to the submission and may be examined in an appropriate case. And the question of construction is kept open. 772. If it is held that an Additional Judge before he is not appointed for a fresh term on the expiry of his initial term of appointment has a weightage in that he has a right to be considered before he is dropped and that this consideration must proceed along the line of consultation under Article 217 with three constitutional functionaries and if in the ultimate analysis he is not appointed without completing the process of consultation, is the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal reaching the President with all the collected material in the process of consultation. So far there is no controversy. The question is, if in case of an Additional Judge in whose favour there is a weightage and he is entitled to be considered as held above, a proposal is killed or an affirmative decision is reached not to appoint him without completing the process of consultation in its letter and spirit, would the Additional Judge be entitled to question the validity of the decision and would the decision be subject to judicial review ? The answer is in the affirmative. This right to question the decision and the power in the Court to grant relief whatever may be the form in which the relief may be moulded, flows directly from the right of the Additional Judge to be considered for being appointed for a fresh term or as a permanent Judge. Right to be considered for a further term or as permanent Judge necessitates full and effective consultation. Any drawback, defect or deficiency in the process of consultation may invalidate the decision. Such invalid decision when questioned, the court may not be able to direct appointment, but the court can certainly give a direction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be form outside the State in which the High Court is situated. With a view to taking first step towards this goal the circular was issued. The circular desired the Chief Minister of each State and the Governor of Punjab to obtain from all the Additional Judges working in the High Court of the State their consent to be appointed as permanent Judges in any other High Court in the country. An opportunity was given to such Judges to name three preferences in which each of them would like to be appointed as permanent Judge. A further request was that whenever in future a proposal is made for initial appointment as a High Court Judge it must be accompanied by the consent of the person so recommended to be appointed to any other High Court in the country coupled with the preference limited to three. It was made abundantly clear that option to give preferences does not imply on the part of the Government a commitment either to appoint the person concerned or to appoint him necessarily at any one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised another crop of controversy to be presently dealt with but there is no whisper of transfer in the circular. As has been pointed out earlier, an Additional Judge has a maximum tenure of two years. At the end of two years he gets a fresh appointment either as a permanent Judge or an Additional Judge for a further period of two years. The consent for fresh appointment is a must. It is open to an Additional Judge whose tenure comes to an end to decline the fresh appointment at least in the High Courts where undertaking is not taken to accept permanent appointment, if offered. If he is, therefore, to be appointed again, necessarily it can be done with his consent. The consent to be obtained is of Additional Judge. Additional Judge is now being told that it is possible that he may be appointed in some other High Court, and that therefore, while giving consent for being appointed for a fresh term or as permanent Judge he is informed that he may be appointed in some other High Court and that he may give his consent with the knowledge of it. The fresh appointment is not a transfer. In fact, in the course of this judgment it will be succinctly thrashed out that a Judge who is transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice. This is also known to be a proper communication channel with Judges of High Court. In this context the expression 'obtain' would only mean request the Judge to give consent if he so desires. If he gives the consent, well and good, and if does not give, no evil consequences are likely to ensure. I am not impressed by the submission of the learned Attorney-General that one who gives consent may have some advantage over the one who does not. I do not see any remote advantage and if any such advantage is given and if charge of victimisation is made out by the Judge not giving consent, the arm of judicial review is strong enough to rectify the executive error. 776. It was, however, said that what is not stated in the circular is more objectionable and of devastating effect than what is stated. It was urged that omission to mention in the circular that one who would not give consent would not suffer any evil consequences or would not be placed at a comparative disadvantage to one who gives consent, and this would precisely convey a threat to the Judge either to give consent or suffer consequences because the negative assurance is not offered. That is hardly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urning now to the petition filed by Shri V. M. Tarkunde in which Shri S. N. Kumar has been joined as respondent 5 and who has participated in the proceedings questioning the validity of the short-term extension granted to him and his subsequent non-appointment. Shri Kumar was appointed an Additional Judge of Delhi High Court for a period of two years by a Presidential Notification dated March 6, 1979. His term was to expire on March 6, 1981. The Chief Justice of Delhi High Court by his letter dated February 19, 1981, addressed to the Law Minister, did not recommend an extension for Shri Kumar. While stating that the pendency in the Court still justified the appointment of Additional Judges, he considered it his painful duty not to recommend Shri Kumar for three reasons : (i) that there have been serious complaints against Shri Kumar both orally and in writing and on examination he was of the opinion that the 'complaints were not without basis'; (ii) responsible members of the Bar and some of his colleagues whose names he was reluctant to mention have also complained about Shri Kumar; (iii) that Shri Kumar has also not been very helpful in disposing of cases. He said that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the Court should note that prior to March 28, 1981, the Chief Justice of Delhi High Court met the Chief Justice of India and discussed the entire matter in detail with the Chief Justice of India with reference to the recitals in his letter dated February 19, 1981. He said that read in juxtaposition, the only permissible inference is that at this meeting there was full and elaborate discussion with regard to what Chief Justice of Delhi High Court had written in his letter dated February 19, 1981, by which he had declined to recommend the extension of the term of Shri Kumar. It was, therefore, said that the three reasons which prompted the Chief Justice of Delhi High Court not to recommend Shri Kumar must have been thoroughly discussed and thrashed out because the expression 'entire matter in detail' would leave no room for doubt that nothing was withheld, nothing was assumed and every aspect was gone into. The Chief Justice of Delhi High Court proceeds further to state that after this discussion which appears to have taken place on March 26, 1981, he addressed a letter dated March 28, 1981, to the Chief Justice of India, a copy of which was annexed to the letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quacy of his disposals because these aspects are not relied upon for non-appointment of Shri Kumar. Ultimately, the decision not to appoint him was founded upon his reputation about integrity. On April 15, 1981, the Law Minister wrote to Chief Justice of Delhi High Court requesting him that it may be that he may not have investigating machinery to conclusively establish the truth of the complaints against Shri Kumar, nevertheless he must have had some material which provided the basis on which he concluded that Shri Kumar's reputation for integrity was not above-board and recommended that he may not be continued, and it would be necessary for the Government to have the material and his comments. There is some reference to a complaint by Shri Sabir Hussain against Shri Kumar in this letter but I propose to ignore it because it is hardly relevant save and except saying that it was relied upon by the learned Solicitor- General to urge that the Chief Justice of Delhi High Court had acted most objectively and in a wholly unbiased manner. That may come later on. 778. In the meantime on April 22, 1981, a writ petition was filed by Shri V. M. Tarkunde in the Delhi High Court questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated March 28, 1981, the Chief Justice of Delhi High Court did not furnish details to the Law Minister as it was so desired by the Chief Justice of India. Then he proceeds to state that somewhere early in May 1980, one of his colleagues met him and said that he was rather perturbed about information with him to the effect that if a substantial amount was paid to Shri Kumar, suits brought by a particular party against an insurance company would be decided in favour of the party. The Chief Justice states that he did not pay much attention to the earlier reports bout when this was brought to his notice and he not being the Chief Justice at that time, he thought that after summer vacation to save Shri Kumar from any embarrassment, he should be put on a jurisdiction other than original jurisdiction and accordingly when he became the Acting Chief Justice and constituted the Benches for the second half of the 1980, Shri Kumar was assigned to a Division Bench on the appellate side. The then proceeds to state that even though Shri Kumar was assigned the work of the Division Bench, he carried with him amount others, three suits Nos. 1409 of 1979, 1417 of 1978 and 1408 of 1979 filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether he had completed his inquiry in regard to the complaints regarding Shri Kumar's integrity and general conduct which the Chief Justice of Delhi High Court had discussed with him as mentioned by him in his letter dated March 28, 1981. He requested the Chief Justice of India to forward the advice in regard to the continuance or otherwise of Shri Kumar and Shri S. B. Wad. To this letter the Chief Justice of India replied by his letter dated May 22, 1981, in which after referring to the three points made by the Chief Justice of Delhi High Court in his first letter dated February 19, 1981, for not recommending continuance of Shri S. N. Kumar, he proceeded to state that the Chief Justice of Delhi High Court met him on March 26, 1981, and amongst others, he stated that he doubted the integrity of Shri Kumar because even though his assignment was changed he still continued to hear part-heard cases on the original side. The Chief Justice of India then proceeds to state that he has made the most careful and extensive enquiries in regard to both these matters and he was satisfied that there was no substance in anyone of them. He proceeded to state that he made enquiries not only fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision not to appoint Shri Kumar by not giving him any extension beyond June 6, 1981, is violative of the constitutional mandate and, therefore, invalid. Keeping aside for the time being the propriety of the request made by the Chief Justice of Delhi High Court that his letter dated May 7, 1981, should not be shown to the Chief Justice of India, what is required to be determined is whether the contents of the letter and more particularly the reasons and materials which prompted the Chief Justice of Delhi High Court to come to the conclusion that the reputation for integrity of Shri Kumar was not what should be for a Judge of the High Court, were brought to the notice of the Chief Justice of India at any point of time and whether he had a chance to think and deliberate over it. And if the answer is in the affirmative, mere failure to show the letter dated May 7, 1981, would not invalidate the decision, Without going into the further details in this behalf, it clearly transpires that at the meeting between the Chief Justice of India and the Chief Justice of Delhi High Court on March 26, 1981, there was a specific discussion of all the three points, including one of lack of integri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assignment was changed gave rise to the belief that it was being done with some ulterior motives and the Chief Justice of India could have only gathered this information from the Chief Justice of Delhi High Court at their meeting on March 26, 1981. This is further internal evidence to buttress the conclusion that everything including all details set out in the letter dated May 7, 1981, concerning Shri Kumar's integrity was the subject-matter of discussion between the Chief Justice of Delhi High Court and Chief Justice of India at their meeting on March 26, 1981. If that be so, the conclusion is inescapable that the consultation is complete. Consultation need not take any particular form. The essence of consultation is deliberation. And if the two high constitutional functionaries met for the avowed object of discussing continuance of Shri Kumar with specific reference to the doubt about his integrity, it would be reasonable to hold that all aspects were considered, gone into and thrashed out. In this view of the matter non-showing of the letter dated May 7, 1981, to Chief Justice of India would not detract from the fullness of consultation as required by Article 217. For these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra took a dignified stand and did not participate in this squabble, undignified as the whole episode appears to be. Had he come and participated, may be the Chief Justice of Delhi High Court would have found his position so untenable that there would have emanated a strong censure about the method and manner of his dealing with his colleagues. These may appear to be strong words but they still fail to express my feelings adequately. I say no more. 784. There was one more submission which may be noticed in passing and I refer to it only for future purpose. If a Chief Justice of a High Court gets information reflecting upon the character and integrity of a colleague or complaints about his behaviour in the Court, fair play in action demands that before relying upon it and taking a step of far-reaching consequence concerning the career and dignity of the colleague, he should in confidence talk to the colleague. In these days when relations between the Bench and the Bar have sunk abysmally low, that rumours, canards, character assassination flourish in the grape-vine, if credence is to be given to such rumours because about integrity usually foolproof facts are not available, but r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judiciary and the public, Government of India must be equally sensitive and considerate about maintaining both the dignity and independence of judiciary. It would add to the stature of the Government of India and reject unsubstantiated criticism that unwarranted attacks are made on the judiciary by the executive if the letter dated May 7, 1981 is shown to the Chief Justice of India and his comments are invited and then a decision is taken whether or not to reappoint Shri Kumar as an Additional Judge. 786. While holding that there was full, effective and meaningful consultation, and on this account the petition in this group are liable to be dismissed, I suggest that the Government of India may show the letter dated May 7, 1981, to the Chief Justice of India, request him to give comments and after receiving the comments, decide whether Shri Kumar should or should not be appointed as an Additional Judge of Delhi High Court. This is not a direction but merely a suggestion for the acceptance of the Government if thought fit. 787. In the second group of cases the first is a Writ Petition No. 274 of 1981 filed by an Advocate practising in the Supreme Court, Miss Lily Thomas, implea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala and Madras respectively being not in public interest and also because Article 222 does not confer any power to transfer a Chief Justice, is unconstitutional. By an order made by this Court on February 4, 1981, from amongst those sought to be arrayed as respondents, the prayer to join Mr. M. M. Ismail and Mr. K. B. N. Singh alone was granted and in respect of others the application was rejected. Rule was issued after recording a statement that the petitioner will not press ground No. 5 challenging the constitutional validity of Article 222 of the Constitution. 788. One Shri D. N. Pandey, Advocate, filed C.W.J.C. No. 2224 of 1981 in the High Court of Patna impleading the Union of India, Chief Justice of India, Shri K. B. N. Singh, Chief Justice of Patna High Court, Registrar of Patna High Court as respondents, praying for an appropriate writ or order directing the respondents to forbear from giving effect to the order of the President dated January 19, 1981, transferring Shri K. B. N. Singh, Chief Justice of Patna High Court as Chief Justice, Madras High Court with effect from the date he assumed charge of his office. By an order made by a Bench of the Patna High Court, Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to transfer a Chief Justice. In this petition he impleaded the Union of India, Registrar of the Madras High Court, Registrar of the Kerala High Court and Registrar of the Patna High Court as respondents. An application to transfer this petition to this Court under Article 139-A was moved. This Court accepted the transfer application by its order dated February 3, 1981, and accordingly the case stood transferred to this Court and numbered as Transferred Case No. 2 of 1981. 791. One Ripudaman Prasad Sinha had filed C.W.J.C. No. 312 of 1981 in the Patna High Court for a writ of quo warranto seeking information as to how after the notification dated January 19, 1981, transferring Shri K. B. N. Singh, Chief Justice, Patna High Court as Chief Justice, Madras High Court, he continued to occupy the office of Chief Justice, Patna High Court. This petition came up for admission before a Bench of the Patna High Court. At the oral hearing a question was posed to the petitioner why he had not produced the Presidential notification and on this short ground the writ petition was rejected. An oral prayer for a certificate to appeal to the Supreme Court was also rejected. Hence he filed Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s heard as the main case and other petitioners and their learned counsel were permitted to intervene at the hearing of this case. 794. Dr. L. M. Singhvi who led, ably supported by Shri H. M. Seervai and Shri Soli Sorabjee, put in the forefront the contention that the power to transfer a Judge of the High Court is an extraordinary power vested in the President, the highest executive in the country, which has to be exercised according to the advice of the council of ministers, if not properly controlled and adequate safeguards provided, would render independence of judiciary a myth. Keeping aside, therefore, the facts of the case, it would be advantageous at this stage to find out the purpose for which such power is conferred on the President under Article 222, the circumstances in which the power can be exercised highlighting the constraint or limitations on the exercise of power which would be safeguards against arbitrary exercise of power. 795. To repeat, on the question of construction of Article 222 we are not breaking a fresh ground. It was the subject-matter of a very intelligent and enlightened debate in the Gujarat High Court wherein Mr. S. H. Sheth, a Judge of the Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power would not permit denial of power if it is conferred. We will have to be all the more circumspect, imbued with wisdom and restraints because let it not be said by the posterity that the Judges interpreting the judiciary provisions in the Constitution have rewritten the Constitution for their own total and absolute insulation from any quarter so that an otherwise irremovable elitist institution may become so entrenched as to be impervious to the realities of the situation. We wish to steer clear of what Professor Friedmann stated, between the Scylla of subservience to Government and the Charybdis of remoteness from constantly changing social pressures and economic needs (see Law in a Changing Society by W. Friedmann). 797. Let us then first recapitulate what has been the majority view in Sheth case (Union of India v. Sankalchand Himatlal Sheth,. 798. Mr. S. H. Sheth, a Judge of the Gujarat High Court was transferred as per the Presidential notification dated May 7, 1976 as Judge of the High Court of Andhra Pradesh. Mr. Sheth challenged the order of transfer in a petition that he filed in Gujarat High Court on June 16, 1976, in which he impleaded Union of India and the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of transfer, it being an administrative executive action in violation of the principles of natural justice and hence the order was bad. The second Judge took the view that the order was unconstitutional because it was passed without Mr. Sheth's consent and secondly because it was passed for a collateral purpose. The third Judge took the view that the mass transfers of 16 Judges which were effected with one stroke though each Judge may have had peculiar personal difficulties to contend with and considering that the Union of India had failed to disclose the nature and content of the consultation with the Chief Justice of India, the consultation was not meaningful and that the pre-condition for exercise of power in Article 222(1) was not satisfied and, therefore, the order was void. All the three Judges unanimously rejected the challenge to the order of transfer on the ground of promissory estoppel. 800. In the appeal preferred by the Union of India only two contentions were examined by the Constitution Bench of this Court. They were : (i) the independence of judiciary being the basic and fundamental feature of the Constitution, power of non-consensual transfer to be exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable to the Chief Justice of India on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice of India, he must ask for them because in casting on the President the obligation to consult the Chief Justice of India, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice of India to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President of his constitutional obligation to place full facts before the Chief Justice of India and the performance by the latter of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive consultation. Concluding on this point, it was observed as under : (SCC pp. 229-30, para 43)Article 222(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Chief Justice of the High Court or from his own colleagues or through any other means which the Chief Justice thinks safe, fair and reasonable. Where a proposal of transfer of a Judge is made the Government must forward every possible material to the Chief Justice so that he is in a position to give an effective opinion. Secondly, although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily. (SCR pp. 501-502) 803. The majority view is that it is not possible to read words 'with his consent' in Article 222 and non-reading of these words would not jeopardise independence of judiciary otherwise guaranteed by the Constitution. It was held that a non-consensual transfer is within the purview of Article 222. 804. On the question of policy transfers which loomed large in the present case, Chandrachud, J. observed that whether it is necessary to transfer Judges from one High Court to another in the interests of national integration is a moot point. But that is a policy matter with w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 222. Scope and ambit of consultation under Article 222(1) has been dealt with in the earlier part of this judgment and it is unnecessary to repeat it here.805. The obligation to consult may arise in different contexts and in different circumstances and situations and for different purposes. Duty or obligation to consult inheres full, effective and meaningful consultation. The situation and context and purpose of consultation would define parameters of consultation. Within the parameters all relevant considerations on which consultation to be effective must be focussed, must be precisely laid down. It was admitted on all hands that transfer is likely to cause hardship and inflict injury both private and to some extent public. In Samsher Singh case it is in terms stated that sometimes transfer is more harmful than positive punishment. Before the Judge is made to suffer hardship or he is required to suffer injury, certain relevant questions have to be examined and answered so that even a remote chance of transfer by way of punishment may be scrupulously avoided and a firm decision is reached that it is for achieving an avowed public interest. In the context of transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian polity, such as continuous denigration of judiciary and experience proving the safeguards spelt out in Sheth case (Union of India v. Sankalchand Himatlal Sheth, against the abuse of transfer power, broken reed, coupled with the claim for naked and arbitrary power, the time has come to reconsider the majority view in Sheth case (Union of India v. Sankalchand Himatlal Sheth, by further buttressing independence of judiciary and completely insulating it against compulsive transfers by accepting the minority view in Sheth case (Union of India v. Sankalchand Himatlal Sheth, , that a non-consensual transfer is beyond the purview of Article 222. In support of this submission Mr. Seervai drew attention to some observations in the judgments of Chandrachud, J. and Krishna Iyer, J. which according to him are factually incorrect and a decision based on such incorrect assumption would render the majority view not sustainable. I remain unconvinced. In my detailed judgment in Sheth case (Union of India v. Sankalchand Himatlal Sheth, in the Gujarat High Court I have given long and elaborate reasons for rejecting the contention that non-consensual transfers are not within the purview of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not so material as to necessitate reconsideration of the majority view. Even otherwise let me see whether presence or absence of the provision to transfer a Judge in the Government of India Act, 1935, has any bearing on the question of construction of Article 222(1).808. Section 220 of the Government of India Act, 1935, provided for constitution of High Courts. Sub-section (2) of Section 220 provided that every Judge of a High Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of 60 years . There is a proviso to this sub-section. paragraph (c) of which states that the office of a Judge shall be vacated by his being appointed by His Majesty to be a Judge of the Federal Court or of another High Court. It was assumed during the course of arguments in Sheth case (Union of India v. Sankalchand Himatlal Sheth, before this Court that paragraph (c) of the proviso to Section 220(2) formed part of the Government of India Act, 1935, as originally enacted. On investigation that does not appear to be correct. It is now pointed out that paragraph (c) of the proviso to sub-section (2) of Section 220 was introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother High Court. And recalling the amendment made to Section 220, paragraph (c) of the proviso to sub-section (2) by the 1944 Act while retaining the word 'appointed' in the body of the paragraph, the marginal note set out the word 'transfer' meaning that the expression 'appointed' in the context of a Judge of a High Court from one High Court to another High Court obviously comprehends his transfer. However, when the Drafting Committee forwarded the revised draft Constitution as passed by the Constituent Assembly at the second reading, it recommended certain amendments and changes. One such amendment was present Article 222. The Drafting Committee while forwarding its report with a draft Constitution as revised by it, stated that it has proposed the insertion of Article 222 to enable the President to transfer a Judge of a High Court from one High Court to another. The proposed provision of the Constitution would not permit of any compensatory allowance being given to Judges on such transfer. Power has accordingly been reserved to Parliament to determine by law the compensatory allowance to be paid in case they are so transferred, and, until Parliament so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id reasons. Briefly, the reasons for accepting the majority view may be stated. 810. Submission is that on transfer a High Court Judge ceases to be a Judge of the High Court where he was functioning and is appointed a Judge of the High Court to which he is transferred and, therefore, it is a fresh appointment and that it can only be with his consent. When it was pointed out that the framers of the Constitution used the words 'appointment' and 'transfer' in Article 217(1) proviso (c), in collocation, they must be aware that the connotation of the two words are different and the word 'transfer' in itself does not involve a fresh appointment, it was said that the words have been used interchangeably and recourse was taken to the definition of 'actual service' set out in clause (11) to Second Schedule which includes joining time on transfer from a High Court to the Supreme Court or from one High Court to another. It was submitted that the word 'transfer' if it does not include appointment is inappropriate when used in the context of a transfer from a High Court to the Supreme Court because that is unquestionably an appointment which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in relation to the High Court to which he is thereby attached.811. Same conclusion inevitably follows when viewed from another angle. Article 217(1) prescribes consultation with three constitutional functionaries before appointing a person as a High Court Judge while Article 222(1) obligates consultation only with Chief Justice of India while transferring a Judge from one High Court to another High Court. If transfer were to mean a fresh appointment and yet it can be carried out by mere recourse to Article 222(1), the only limitation on the power of the President while ordering transfer is to have consultation with the Chief Justice of India, while if the President is making an appointment of a High Court Judge within the contemplation of Article 217(1) the President is under a constitutional obligation to consult not only the Chief Justice of India but the Chief Justice of High Court to which appointment is being made as also the Governor of the State in which the High Court is situated. Mr. Seervai in this context urged that the two articles must be harmoniously construed and to achieve the harmonious construction he submitted that even though in the case of a transfer under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wittingly the pet theory that the independence of judiciary is prized so high that in order to achieve it if it becomes a compelling necessity the provision of a constitution may be rewritten, no canon of construction permits this to be done. We must always remember that we are called upon to construe the Constitution, the fundamental law of the land. No doubt a broad and liberal spirit should inspire those whose duty it is to interpret it, but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors . (In re The Central Provinces and Berar Act, 1938 (1939) FCR 18, 37 : : 180 IC 161) The Constitution-makers clearly envisaged a power to transfer a High Court Judge and conferred it on the President and howsoever we may disapprove this power we cannot wish this power away by rewriting the article. There is no power in the Court to rewrite the article. Dr. Ambedkar who piloted the Constitution in his speech on November 25, 1949, on the motion that the Constitution as settled by the Constituent Assembly be passed, ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the liability can be imposed without consent. The moment the concept of consent is imported the power ceases to be power and becomes disability. It either becomes immunity or disability, more appropriately disability, in the sense of lack of power. (See for this discussion pages 229 and 230 of SALMOND ON JURISPRUDENCE by Fitzerald 7th Edn.) Is it open to the Court by a process of interpretation to neutralise the power and thereby remove the disability which was constitutionally provided ? I consider it impermissible and, therefore, also the contention that the Court should read the words 'with his consent' in Article 222(1) must be rejected.814. What then is the check against arbitrary exercise of power conferred by Article 222(1) once the argument that it can only be exercised with the consent of the Judge to be transferred is rejected. This power to transfer a High Court Judge has rightly been described as an extraordinary power. The question then is, unless a positive check on its arbitrary exercise emanating from judiciary is found, this extraordinary power is likely to undermine independence of judiciary. It was said that the best check would be if this power can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horse and is incapable of any precise definition and, therefore, it was urged that this safeguard is very vague and of doubtful utility. It was urged that these safeguards failed to checkmate the arbitrary exercise of power in 1976. This approach over-looks the fact that the Lakshman Rekha drawn by the safeguards when transgressed or crossed, the judicial review will set at naught the mischief. True it is that it is almost next to impossible for individual Judge of a High Court to knock at the doors of the Courts because access to justice is via the insurmountable mountain of costs and expenses. This need not detain us because we have seen that in time of crisis the Bar has risen to the occasion twice over in near past though it must be conceded that judicial review is increasingly becoming the preserve of the high, mighty and the affluent. But the three safeguards, namely, full and effective consultation with the Chief Justice of India, and that the power to transfer can be exercised in public interest, and judicial review, would certainly insulate independence of judiciary against an attempt by the executive to control it. 816. There was a lively debate as to whether transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would indisputably be in public interest. Unquestionably such transfer may cause some inconvenience or hardship to the transferred Judge, but by no stretch of imagination it can be said to cast either a slur or that the order was passed with a view to punishing him. Such a situation in our vast country with number of High Courts can be easily envisaged. A transfer of this nature even if it involves to the Judge concerned some hardship, some inconvenience, some pecuniary loss, yet his outstanding merit which necessitated his transfer for strengthening another High Court would far outweigh the personal considerations. If it is recognition of merit, the Judge would himself hardly make any grievance about it. To question such a transfer as not being in public interest by illustration that there are three Judges of same eminence in three High Courts, what basis can be adopted for the transfer of a Judge, is too hypothetical to need an answer. No rule can be framed to meet with such a situation. A threat of a resignation by such a Judge is inconceivable. One can visualise a number of situations where a transfer can be in public interest and when a transfer is effected in public inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a slur which transfer from one High Court to another involves the better view would be to leave the Judges untouched and take other measures to achieve the purpose pleaded, namely, national integration . Transfer thus casts slur. If, therefore, a Judge is transferred because he is involved in local factious atmosphere or has a circle of favourites and disfavourites it would be obviously by way punishment and would cast a slur and stigmatise the Judge. Mr. Seervai pointed out that while conceding in the majority view that transfer involves a slur, the illustrations given by Chandrachud, J., clearly show that transfer in such situations would be by way of punishment. Power conferred by Article 222(1), frankly, cannot be exercised with a view to punishing the Judge. It can only be exercised in public interest for achieving some larger public good. But it was urged that if a Judge is not guilty of high misdemeanour sufficient to impeach him but behaves in a manner which brings administration of justice into disrepute a transfer which with a view to uprooting him from an atmosphere in which he has become inconvenient, would be to the good of that Judge and in the interest of purity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer is that the Court, in such a situation, must determine the dominant public interest, and give precedence to it over the conflicting subservient interest which must give way. Said Mr. Seervai, tolerate the situation rather than undermine judicial independence by compulsory transfer by the executive. It often happens that the principles when pushed to logical end lead to two irreconcilable positions. In such a conflict, choice has to be made. Cardozo in his Nature of Judicial Process (pp. 40-41) vividly describes this conflict by saying that force of logic of one should prevail over the other, and the choice is made by the judicial mind born of its conviction that the one to be selected would lead to justice. In the end, the principle which is thought to be most fundamental to represent the larger and deeper social interests must put its competitors to fight. Approaching from this angle, he said, if you cannot impeach the Judge, tolerate, but you cannot transfer him without his consent, because that would impinge upon the higher public interest, namely, independence of judiciary and would nullify the cardinal feature of the Constitution.But on deeper thinking I believe that selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainly cast stigma or slur and would be by way of punishment and that cannot be inflicted by exercise of power under Article 222(1). If transfer can be effected because there are complaints and grievances against a Judge of a High Court on account of his behaviour or conduct it would permit the executive after going through the process of consultation to rotate inconvenient Judges and this rotation causes such character assassination on one hand and hardship and inconvenience on the other that it will be sufficient to drive out even a strong-willed Judge. Therefore, a transfer on account of any complaint or grievance against a Judge referable to his conduct or behaviour is impermissible in exercise of power under Article 222(1).819. One more submission may be examined here. It was contended that upon a true construction of Article 222(1), a proposal for transfer cannot be initiated by the Chief Justice of India, it can only be initiated by the President because the Chief Justice of India is the 'consultee'. The power of transfer is conferred on the President and it can be exercised after consultation with the Chief Justice of India. Chief Justice of India is thus the consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President in this turn must apprise himself of all the relevant considerations. If there are either grey or blurred areas, it would be the constitutional obligation of the President to call for necessary information from the Chief Justice of India who being the initiator of the proposal must have considered all of them and having brought to bear upon the subject his mature consideration must have initiated the proposal and after all the relevant date thus supplied, including the missing links, if any, as required by the President, the President may either exercise the power or on mature consideration may decline to exercise the power. Collection of relevant material, public interest involved, and the decision recommending transfer must precede the proposal and the same must accompany the proposal. A bald proposal unaccompanied by relevant material and the reasons for proposing transfer and total absence of public interest sought to be served by the proposal would certainly not satisfy the constitutional mandate of Article 222(1). The fulfilment of the constitutional obligation in this background would be on the Chief Justice of India and the performance by the President of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a very large number of cases coming before a Judge of a High Court; (iii) the power to transfer a High Court Judge is extraordinary power; (iv) the limitation on the exercise of power is a full, effective and meaningful consultation with the Chief Justice of India; (v) the power to transfer can be exercised only in public interest and not according to the whim, caprice or fancy of the executive or to remove an inconvenient Judge not toeing its line; (vi) the consultation to be effective must be focussed upon such very personal factors as the family problems of the Judge, which include the position of his wife and children and parents, the reasons for transfer whether the transfer is actuated on account of anything in the conduct or behaviour of the Judge, whether the injury, inconvenience and difficulties experienced by the Judge consequent upon his transfer are such as to be inconsequential in view of the larger public interest for which the transfer is being ordered; (vii) would the transfer cast a slur or stigma on the Judge proposed to be transferred; (viii) the policy universally followed till 1976 of not transferring a Judge of High Court without his conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K. B. N. Singh has filed has filed as many as four affidavits. It is not necessary to recapitulate the averments in these affidavits. The broad allegations which have a bearing on the issues under discussion may be briefly stated. 824. In his first affidavit dated September 7, 1981, the only averment worth referring to is that he had not at any time consented to his transfer to Madras and that no reasons, grounds, questions or materials necessitating of justifying his transfer from Patna to Madras were ever disclosed to him or discussed with him by the President of India or the Government of India or by the Chief Justice of India. He also states that it was not possible for him to give consent to his transfer on account of a compelling personal problem, namely, that his mother of advanced age is staying with him and she is seriously ailing and bedridden for over two years and who is not in a position to be moved out of Patna without risk to her life and he is not in a position to leave her alone. Coupled with this affidavit there was a request that from the array of respondents he may be transposed as petitioner 3, which request was granted. 825. Consequent upon transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... experienced and senior Chief Justice in his place. Shri Singh then asserts that he informed the Chief Justice of India that his mother who lives with him was seriously ill and bedridden and was not in a position to be moved from Patna without risk to her life. This is admitted. The additional averment of Shri Singh that he also stated certain other compelling and personal circumstances and difficulties was disputed and denied. Undoubtedly the further averment of Shri Singh that despite all these difficulties, if his transfer is insisted upon he might be compelled to resign and such a statement having been made by him in the telephonic conversation is admitted by the Chief Justice of India. Shri Singh was also informed that the Chief Justice of India has taken note of the difficulties mentioned by him and that it would be taken into consideration before a final decision was taken. The Chief Justice of India also requested Shri Singh during this conversation to come over to Delhi to discuss the question of his transfer. Shri Singh further avers that he reached Delhi three or four days after this telephonic conversation and according to Chief Justice of India Shri Singh came to Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e him administratively or judicially. The Chief Justice of India further states that he (Chief Justice of India) assured Shri Singh that he did not hold that he (Shri Singh) himself was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Number of grounds have been stated by Shri Singh in this affidavit but those of which notice may be taken are that the transfer is without consent which according to him is impermissible, and that the consultation was not full, effective and meaningful in that the relevant considerations were not taken into account, no verification of facts was made and there was no relevant consideration for coming to a fair and considered conclusion that such a transfer would be in public interest. One additional ground is that the impugned order of transfer is punitive in character. Further, the transfer caused injury and the injury is inflicted without following the principles of natural justice, and the transfer is not shown to be in public interest.826. Chief Justice of India filed his counter-affidavit dated September 29, 1981. Shri Singh filed reply to the counter-affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the overall view of the letter, the approach of the Chief Justice of India, the permeating flavour in the letter that the transfer is consequent upon some inquiries in respect of complaints against various Chief Justices and this has a vital bearing on the topic of transfer. Viewed from this angle, the statement in this letter that several complaints have been received against Mr. Justice Farooqi, some of which, on verification, seem well founded, has a direct nexus to the recommendation that Mr. Justice Farooqi, then Acting Chief Justice of Jammu Kashmir should be transferred as a puisne Judge of the Punjab Haryana High Court. As would be pointed out later, indisputably the transfer was a direct consequence of complaints found well founded on verification and, therefore, the transfer was directly and irrevocably related to the conduct of Justice Farooqi.830. The Chief Justice of India then proceeds to state in unmistakable terms as under which is very very relevant : Though I am firmly opposed to a wholesale transfer of the Chief Justices of High Courts, I take the view, which I have expressed from time to time, that such transfers may be made in appropriate cases for str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, 1981. This letter thus involves the transfer of Acting Chief Justice Mr. Farooqi, Mr. Justice M. H. Hussain, Acting Chief Justice Mr. K. D. Sharma, Chief Justice Mr. K. B. N. Singh and a near certain transfer of Chief Justice Mr. Satish Chandra. 831. Leaving aside others, one incontrovertible fact may be noticed here that prior to December 7, 1980, when a firm proposal was made for transfer of Shri K. B. N. Singh from Patna to Rajasthan High Court, there was neither a whisper nor discussion between Chief Justice of India and Shri Singh concerning his transfer. The proposal to transfer Shri Singh is a firm proposal not a tentative one because the tentative suggestion couched in a different language is in respect of Shri Satish Chandra, Chief Justice of Allahabad. As far as Shri K. D. Sharma, Acting Chief Justice of Rajasthan, Shri K. B. N. Singh, Chief Justice of Patna, Shri Farooqi, Acting Chief Justice of Jammu Kashmir, and Shri M. H. Hussain, Judge of Allahabad High Court, are concerned, there was a firm proposal and it would mean that before making such a firm proposal the Chief Justice of India must have taken all aspects bearing on the question of transfer into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d December 8, 1980, the proposal to transfer Shri K. D. Sharma as Chief Justice of Kerala was cancelled and in supersession of that proposal a fresh proposal was submitted that Shri K. D. Sharma be transferred to Sikkim and Shri M. M. S. Gujral, the then Chief Justice of Sikkim be transferred as Chief Justice, Kerala. Even Mr. Gujral was inducted as a High Court Judge five months later than Mr. Poti. This fact was not considered important enough in making the proposal. The other proposals contained in the letter dated December 7, 1980, were reaffirmed which would imply that Shri K. B. N. Singh's proposed transfer from Patna to Rajasthan High Court was to be ordered.832. The next letter dated December 18, 1980, by Chief Justice of India to Law Minister reveals one more fact that before the letter dated December 8, 1980, intimating the cancellation of proposal of transfer of Shri K. D. Sharma to Kerala High Court reached appropriate quarters, the proposal was already processed to the Prime Minister who appears to have approved the same and this becomes evident from a recital in the letter dated December 18, 1980, that having communicated one proposal to the Prime Minister in rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancy caused in the office of Chief Justice of Madras High Court, Shri K. B. N. Singh, Chief Justice of Patna be transferred as Chief Justice of Madras. A further proposal was that Shri Syed Sarwar Ali, seniormost puisne Judge in the Patna High Court should be appointed as Acting Chief Justice of the Patna High Court. There ends the correspondence. 835. The correspondence bearing on the question of transfer of Shri K. B. N. Singh, commencing from December 7, 1980, and ending with the letter dated December 20, 1980, has been disclosed. There is no contemporaneous written evidence bearing on this topic either in the form of memorandum or notings. This becomes explicit from the following paragraph in the statement made on behalf of Union of India by the learned Solicitor-General on November 12, 1981. Relevant paragraph in the statement reads as under : Except the material brought on record by the various affidavits filed on behalf of the Government of India in the case, the correspondence already disclosed and the notings submitted to this Hon'ble Court with a claim of privilege, there are no minutes recorded as to any conversation between the Chief Justice of India and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of Himalayas. Shri Singh is first proposed to be sent from Patna to Jodhpur, Rajasthan, both in Hindi speaking belt and then actually shifted to Madras, Hindi to Tamil, seriously objected to by Mr. M. G. Ramchandran, Chief Minister of Tamil Nadu. Shri Ismail moved from Madras to Kerala not very far away though from Tamil to Malayalam language area. Shri Farooqi who was first in Kashmir, then sent to Allahabad, brought back to Kashmir, is proposed to be demoted and sent to Chandigarh. Shri Mohammad Hamid Hussain moves from Allahabad to Jammu Kashmir. The chequered history of this rotational movement spreading over hardly 13 days would hardly satisfy the rigorous test of a mature, objective, dispassionate consideration of the various factors involved in the transfer. This is all the more so because as it will be pointed out a little while later that the Government of India possibly out of deference to Chief Justice of India, which ought to be the right attitude, had simply abdicated itself and accepted the proposals not for the reasons for which they were made but for entirely contrary and opposite reasons.838. Transfer of Shri Singh is sought to be sustained on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest requires transfer of Shri Satish Chandra, a visit to Allahabad would hardly be enlightening. If the state of affairs at Allahabad is required to be ascertained a visit is inevitable. That such a visit was in contemplation is clearly stated and during this visit what was contemplated to be done was a meeting with various members of the Allahabad Bar as also Judges of the Allahabad High Court. And this meeting was for the avowed object of ascertaining the state of affairs in Allahabad which will have a bearing on the proposal to transfer Shri Satish Chandra. Can it be said in all humility that the sequence of events herein set out would not unmistakably show that the complaints against Shri Satish Chandra have to be examined, the truth or otherwise of it has to be ascertained, the degree of his unacceptability at Allahabad has to be determined and upon all these considerations flowing invariably from complaints against Shri Satish Chandra, a transfer proposal would be submitted. Add to this the statement in the letter dated December 7, 1980, when the chapter on transfers opens that transfers be made in appropriate cases for strictly objective reasons. In this connection Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, meaning thereby selective transfers. Then he says that it must be for objective reasons. These objective reasons may include complaints against the Judge concerned and the complaints, if found to be of substance, transfer may be ordered pursuant to the complaints. Transfers on such complaints can be made and would not be made punitive is also his view in the leading judgment in Sheth case (Union of India v. Sankalchand Himatlal Sheth, . To recall his observation that the factious local atmosphere sometimes demands the drafting of a Judge or Chief justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favourites and non- favourites (SCC p. 220, para 22). Transfer for these reasons would, according to the view expressed by Chandrachud, J. in Sheth case (Union of India v. Sankalchand Himatlal Sheth, , be in public interest. This itself is a moot point. Transfer in appropriate cases not answerable to any objective norms would be selective transfer. But in view of the majority decision in Sheth case (Union of India v. Sankalchand Himatlal Sheth the more objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im save and except that they form part of India ? Shri Singh was proposed to be transferred first to Jodhpur and then he was shifted to Madras. Now, nothing transpires from the record as to what relevant considerations about selecting the station qua a judge have weighed with the Chief Justice of India while making proposal for transfer.842. One additional fact which I only propose to mention and not comment upon is that all the relevant considerations were not thoroughly examined and analysed before making the proposal and this becomes apparent from the fact that a very vital consideration that a junior may not be imposed over a senior was wholly overlooked when Mr. K. D. Sharma was proposed to be sent to Kerala because there were six Judges senior to Mr. Sharma who would be puisne Judges and over whom he would be the Chief Justice. And this is admitted when it is stated that that aspect while making the proposal was overlooked. This is such a vital consideration that if the proposal had been carried out, it would have admittedly invited a great amount of public criticism and would have resulted in administrative problems in the way of Mr. Justice Sharma himself. 843. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, and what would be the result of bringing about an estrangement between the two. That is a vital consideration; not the fact of her age and present health. Till January 5, 1981, during which period two independent proposals emanated from the Chief Justice of India for transfer of Shri K. B. N. Singh, first to Rajasthan and next to Madras, not a whisper was made to Shri Singh about the proposed transfer. After all, when a high constitutional functionary like the Chief Justice of India makes a proposal how speedily it is processed at the highest level becomes discernible from the fact that the proposal dated December 7, 1980, passed through the Law Minister to the Prime Minister by December 9, 1980, and was approved by the Prime Minister and embarrassment was felt as disclosed by the letter of the Chief Justice of India dated December 18, 1980, while withdrawing the proposal. The incontrovertible fact situation that emerges from reading the correspondence is that the Chief Justice of India made the proposal for transfer of Shri K. B. N. Singh in the letter dated December 7, 1980, reaffirmed it in the letter dated December 8, 1980, described it as tentative by saying that the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta is postponed to a later date. This is contrary to what Chandrachud, J. has stated in his judgment in Sheth case (Union of India v. Sankalchand Himatlal Sheth,. To recall, he said that there can be no purposeful consideration of a matter in the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and a right decision taken. The decision to be a right decision must follow the collection of material and be based on the material and that collection of evidence is not an empty formality for the record only.846. It was, however, said that before the proposal was finally implemented by the Presidential notification transferring Shri K. B. N. Singh there was a full and effective consultation between the Chief Justice of India and the President and that by that time the Chief Justice of India was in possession of all the relevant and material facts. Attention in this context was invited to a statement in the affidavit of the Chief Justice of India that there was a full and effective consultation between me and the President of India on the question of Shri K. B. N. Singh's transfer from Patna to Madras as Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full and effective consultation with the President of India prior to transfer, it has to be evaluated in the light of the contemporaneous written evidence in the form of the letter of the Chief Justice of India dated December 7, 1980. And in the statement on behalf of Union of India dated November 12, 1981, it is specifically made clear that except the disclosed correspondence and notings for which privilege is claimed there are no minutes or notes of discussion. I have shown above that there is no other contemporaneous written record except the correspondence. The first proposal to transfer Shri K. B. N. Singh finds its place in letter dated December 7, 1980. It is an admitted position that prior to that there was no discussion between the Chief Justice of India and the Law Minister. Equally it is an admitted position that Shri K. B. N. Singh was not even whispered that it was proposed to transfer him. It is also an admitted position that it was on January 5, 1981, that the Chief Justice of India talked with Shri K. B. N. Singh for the first time in which he broached the subject of transfer of Shri Singh. The inescapable conclusion is that a firm proposal for transfer was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted the Chief Justice of India to propose transfer of Shri K. B. N. Singh to Rajasthan. The later suggestion that Shri Singh's transfer was proposed to subserve the public interest, namely, that he is a senior, experienced Chief Justice needed to preside over a premier High Court will not help because there was no question of sending a senior, experienced Chief Justice to Rajasthan High Court and at the relevant time there was no proposal for transfer of Shri M. M. Ismail, Chief Justice of Madras High Court. Therefore, some other public interest must have informed the Chief Justice of India to propose transfer of Shri Singh to Rajasthan. What inevitably transpires is that the transfer of Shri Singh from Patna is certain, reasons and place and public interest may fill in the gap as situation demands. This is nether consultation nor appreciation of relevant facts to satisfy the rigorous test laid down in Sheth case (Union of India v. Sankalchand Himatlal Sheth, 848. There is a further lacuna in the process of consultation and it may be briefly mentioned here. While laying down the parameters of the scope of consultation under Article 222(1), Chandrachud, J. in his leading judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and ascertain further facts either directly from the Judge concerned or from reliable sources, but thereafter he has voiced a caution that the executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice (SCC p. 230, para 43). Consistently with this weighty judicial pronouncement the Chief Justice of India alone will have to gather all material and the executive would be well-advised to keep hands off the judiciary. Therefore, whatever material the Chief Justice of India will have, has to be placed before the President. The correspondence manifests a woeful lack of any such material being placed before the President. That apart, the Chief Justice of India proposed selective transfers in appropriate cases strictly for objective reasons. Now, look at the performance of the executive. The executive appears to have accepted the proposal not on merits but out of reverence for the Chief Justice of India which constitutes a complete abdication of its function. This becomes discernible when in the course of hearing in response to a query made by the Court, the learned Solicitor-General made a statement on November 12, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deaf ears, for, the Government of India had a policy in embryonic stage and the Chief Justice of India was firmly opposed to any such policy because he is firmly committed to the view as laid down in his majority judgment in Sheth case (Union of India v. Sankalchand Himatlal Sheth, that policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the Contemplation of our Constitution. He reasserts this in his letter dated December 7, 1980. Apart from this, it is impossible to uphold this transfer. It is no doubt true that laying down of a policy is the function of the executive. If that policy relates to judiciary, ordinarily the executive would be well-advised to have full and effective consultation with the Chief Justice of India, the highest constitutional functionary in the judiciary. The policy has to be evolved and firmly laid. Views expressed do not constitute policy. Now the question is, was there any policy to which these transfers can be related ? The view of the Government as expressed by the Law Minister is that Chief Justice of every High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, unambiguous statement of the Law Minister on September 3, 1981, much after the commencement of hearing in this case in the Court, would remove any vestige of doubt that a decision on policy transfers was yet to be taken. There was a view expressed but no policy in July 1980, there was no such policy in January 1981 when Shri K. B. N. Singh was transferred, there was no policy as late as September 3, 1981, when the case was being heard and the statement made to this Court on November 12, 1981, that the policy aspect could still be pressed into service later on, leave no room for doubt that the impugned transfer was not a policy transfer. Therefore, the transfer of Shri Singh cannot be upheld as a policy transfer. It is rather in this context surprising that the Chief Justice of India while firmly opposing policy transfers in letter dated December 7, 1980, should tell Shri Singh on January 5, 1981, that it was Government policy to transfer Judges. And there is nothing to show that between December 7, 1980, and January 5, 1980, Chief Justice of India has veered round to the view of Law Minister because if he had, he could have proposed transfer of a large number of Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niormost puisne Judge is appointed as Chief Justice. There were, of course, some cases in which the Chief Justice was brought from outside and the cases pointed out were of Mr. Justice Das sent to Karnataka, Mr. Justice Sarjoo Prasad going to Rajasthan, and out esteemed colleague Mr. Justice R. S. Pathak going to Himachal Pradesh. But these cases are few and far between. The normal rule of succession has been the seniormost puisne Judge becoming the Chief Justice unless he was otherwise found to be unsuitable. And the Chief Justice of India accepts unreservedly just and rightful expectations of the seniormost puisne Judge to be promoted as Chief Justice when he suggests that Mr. Poti, seniormost puisne Judge in Kerala High Court will be deprived of his just and rightful expectation to be promoted as Chief Justice when he suggests that Mr. Poti, seniormost puisne Judge in Kerala High Court will be deprived of his just and rightful expectation to become Chief Justice on the transfer of Shri K. D. Sharma, and therefore, further suggested that Mr. Poti be appointed in a suitable vacancy as Chief Justice but outside Kerala, thereby, of course, denying rightful expectation of the seniorm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccession to the Chief Justice is always being trained by being normally associated with administration so that when the elevation as Chief Justice becomes due he has already his grip over the administration. In most of the High Courts seniormost puisne Judge is always entrusted with a large chunk of administrative work and, therefore, he is probably well acquainted and trained to take over the responsibilities of a Chief Justice. There is no material on record which would show that Mr. Gokulakrishnan would not compare favourably with Mr. Singh for being appointed as Chief justice of Madras High Court. Mr. P. S. Poti the seniormost puisne Judge of Kerala High Court and who is functioning as Acting Chief Justice since the elevation of the then Chief Justice of Kerala High Court to Supreme Court has been a Judge of the High Court since 1969. If 12 years of High Court judgeship does not make the incumbent mature for Chief justice one would be left guessing when he would become one. And yet Mr. M. M. Ismail was transferred to Kerala reverting Mr. Poti as puisne Judge. It thus appears that the transfer of Shri Singh on the ground that he is the seniormost experienced Chief Justice which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssassination. From this limited point of view one cannot escape the conclusion that such transfer in the background stated would cast a slur and, therefore, is punitive in character and that would also vitiate the order of transfer.854. Having examined all the relevant considerations, regrettable as it may appear, the conclusion is inevitable that the order of transfer of Shri K. B. N. Singh is vitiated for want of effective consultation and the selective transfer would cast a slur or stigma. Add to this that the public interest pleaded fails to carry conviction in the facts and circumstances of this case and, therefore, the transfer does not appear to be in public interest. For all these reasons the order of transfer is vitiated and must be declared void. 855. In the course of hearing petitioners requested the Court that the correspondence that passed between the Chief Justice of India, the Chief Justice of Delhi High Court and the Law Minister in regard to the non- appointment of Shri S. N. Kumar as Additional Judge be disclosed. The Union of India through the affidavit initially of Shri S. M. H. Burney, Secretary, Ministry of Justice and subsequently by the affidavit of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple which has to be applied in such cases in the following words : [D]ocuments otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be withheld from production. The question was whether the objection to production taken was a valid one or not. The House of Lords in the aforementioned case held that an objection validly taken to production on the ground that this would be injurious to public interest is conclusive. Having referred to this observation, the majority decision further proceeded to state that the decision in the case before it where in privilege was claimed against disclosure must ultimately rest on the relevant statutory provisions contained in Indian Evidence Act. The Court then refereed to Sections 123 and 162 of the Indian Evidence Act. Referring to the expression 'affairs of the State' in Section 123, the majority judgment observed that in the latter half of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public interest requires that the disclosure should not be ordered. It is, however, equally well recognised that fair administration of justice is itself a matter of vital public interest. Therefore, if the two public interests conflict, the Court will have to decide whether the public interest which formed the foundation for claiming privilege would be jeopardised if disclosure is ordered and on the other hand whether fair administration of justice would suffer by non-disclosure and decide which way the balance tilts. Viewed from this angle, it was stated in Conway [1968] A.C. 910 : [1968] 1 All E.R. 874(HL)) that the Court should balance public interest involved where a clash of public interest is brought to its notice. In the ultimate analysis the approach of the Court while deciding the question of privilege would be that it has to balance public interest in just justice and just administration of justice and State affairs at high level in respect of appointment to high constitutional offices and then decide which way the balance tilts. Having formulated this test the answer was that a disclosure in the interest of justice far outweighs the possible embarrassment felt by disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed along the same lines as prescribed under Article 217. (3) Consultation under Article 217 must be full, effective and meaningful and in the case of an Additional Judge, if there is any defect, drawback or deficiency in the consultation the decision arrived at is open to judicial review. (4) Power to transfer a High Court Judge conferred by Article 222 on the President can be exercised after full, effective and meaningful consultation with the Chief Justice of India and this necessitates all the facts in possession of one or the other constitutional functionary being fully exchanged and deliberated upon. (5) Power to transfer a High Court Judge cannot be exercised with a view to punishing a Judge or for anything in his conduct or behaviour which may cast a slur or stigma on him. (6) The circular of the Law Minister dated March 18, 1981, does not suffer from any infirmity and is not constitutionally invalid. 858. Accordingly, Transferred Case No. 19 of 1981 arising from the writ petition filed by Shri S. P. Gupta in Allahabad High Court, Transferred Case No. 21 of 1981 arising from the petition filed by Shri J. L. Kalra and others in the Delhi High Court, Transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, and he assails the appointments of some Additional Judges of the High Court for short terms of six months only when, according to him, the Additional Judges should have been appointed as permanent Judges. In particular, he has prayed for a declaration that three Additional Judges, Mr. Justice Murli Dhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mithal be deemed to have been appointed as permanent Judges and that the circular letter of the Law Minister is void.863. Transferred Case No. 20 of 1981 filed by Shri V. M. Tarkunde, a Senior Advocate of the Supreme Court as a writ petition in the High Court of Delhi, also assails the circular letter and the appointments of three Additional Judges, Shri O. N. Vohra, Shri S. N. Kumar and Shri S. B. Wad for a further period of three months only. The petitioner prays that the circular letter be declared void and the posts of Additional Judges in the several High Courts be converted into permanent posts. Of the three Additional Judges specifically named, Shri S. N. Kumar has entered appearance and has supported the case pleaded by the petitioner. 864. Shri J. L. Kalra and a few other advocates filed Transferred Case No. 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been impleaded as a respondent, was transposed as a petitioner. 871. These cases raise constitutional questions of considerable significance to the judicial system in India. They involve grave issues of fundamental importance respecting the High Courts and the Judges constituting them. They deeply affect the Rule of Law and the administration of justice. The Rule of Law and the administration of justice 872. India is a sovereign socialist secular democratic republic governed by a written Constitution designed to secure to all its citizens justice, liberty, equality and fraternity in their various facets. A constitutional democracy so portrayed has its institutions and values rooted in the Rule of Law, and that is plainly demonstrated by the provisions of our constitutional structure and the constitutional philosophy inspiring it. The vitality of the Rule of Law flows from those roots to the several branches of the constitutional structure, sustaining and nurturing them and giving them life and their intended significance.873. The Rule of Law is the primary principle of our Constitution, and in its universality and omnipotence it postulates that no one, neither State nor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a land and among a people whose ancient values stemmed from Truth as a Reality, culminating in the adoption of a national emblem confirming that creed, they could have done no less.876. It is pertinent to observe that the High Courts under our Constitution have been conferred far wider jurisdiction and powers than the High Courts under the Government of India Act, 1935. They enjoy not only the jurisdiction and powers existing before the commencement of the Constitution but by virtue of Article 226 they have been vested with power to issue directions, orders or writs to any person or authority, including any Government within their territorial jurisdiction, and that power is not limited, as it is in the case of the Supreme Court of India, to the enforcement of the rights conferred by Part III but extends to any other purpose. Moreover, by Article 227 of the Constitution the High Courts have been granted the superintendence not merely over all courts subject to their appellate jurisdiction but indeed over all courts and tribunals throughout their territorial jurisdiction. Further, unlike the Government of India Act the Constitution has not prohibited the High Courts from enjoying or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate court involving a substantial question of law as to the interpretation of the Constitution. Article 229 provides for the appointment of officers and servants of the High Court, and Article 230 for the extension of jurisdiction of the High Court to Union territories. Finally, there is provision by Article 231 for establishing a common High Court for two or more States or for two or more States and a Union Territory.879. An important point to note is that Chapter V relating to the High Courts embodies a single organic scheme. The provisions of that scheme are interrelated and often interdependent, and in order to appreciate the true purpose, scope and content of any provision it is necessary to examine it in the context of the entire constitutional scheme. This is so, whether the question relates to the appointment of an Additional Judge, or to the transfer of a Judge from one High Court to another. The constitution of the High Courts and the appointment of the Judges 880. In an modern democracy the supreme power of the State is shared between the three principal organs, the Executive, the Legislature and the Judiciary. Each holds a distinct position in the overall constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l they attain the age of 62 years, and whose tenure is fixed by the Constitution itself. They are appointed with reference to the normal work-load of the Court. A fixed tenure unaffected by the discretion of the executive safeguards the principle of judicial independence. In special circumstances, however, and in special circumstances only, the appointment of Additional Judges or acting Judges is contemplated under Article 224. An Additional Judge is appointed under clause (1) of Article 224 where it appears to the President that by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein the number of the Judges of that court should be for the time being increased. The number of Judges is increased only for time being, and the appointment of an Additional Judge is, therefore, envisaged for a limited period which, by clause (1) of Article 224 must not exceed two years. An acting Judge is appointed under clause (2) of Article 224 by the President when any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only to a former Judge of that High Court but also to that of any other High Court. Apparently, it was felt that by enacting Article 224 there was no need to provide for the appointment of temporary or Additional Judges. It was subsequently found that the arrangement was not adequate, and for that reason the Constitution (Seventh Amendment) Act, 1956 brought in the present Article 224 providing for Additional Judges and acting Judges and simultaneously deleted the original provisions respecting former Judges. However, the need for former Judges continued to be felt, and the provision was reintroduced by the Constitution (Fifteenth Amendment) Act, 1963 and was numbered as Article 224-A. 885. The procedure for appointing a Judge of a High Court is set forth in clause (1) of Article 217. A Judge of a High Court is appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. The appointment of a Judge is an executive act. The power to appoint is vested in the President, who by virtue of clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Act, 1935 had been assured by prescribing a fixed tenure under sub-section (2) of Section 220, and a Judge could not be removed from his office except on the ground of misbehaviour or of infirmity of mind or body and on a report by the Judicial Committee of the Privy Council that the Judge ought to be removed. There was the further stipulation by the proviso to Section 221 that neither the salary of a Judge nor his rights in respect of leave of absence or pension could be varied to his disadvantage after his appointment. Now, the independence of the judiciary can be fully safeguarded not by merely conferring security on the Judges during their term of office but by ensuring in addition that persons who are independent, upright and of the highest character are appointed as Judges. Moreover, there is always the fear that appointments left to the absolute discretion of the appointing executive could be influenced by party considerations. The framers of the Constitution apparently had this in mind when they decided to incorporate the prescription of consultation in the terms set forth in clause (1) of Article 217. As Sardar Vallabhbhai Patel explained in the Constituent Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet him. His assessment can be subjectively affected. The Chief Justice of India has been brought in, and it is apparent that, in virtue of the exalted office held by him and the circumstance that he is far removed from the local pull of influences and the temptations of partnership, he can be trusted to apply a strictly objective approach to the recommendation proceeding from the High Court. Besides, the Chief Justice of India possesses the advantage of viewing the matter from the superior plane of a national perspective. He is seized with knowledge of prevailing standards and trends in the different High Courts, and as the head of the highest court in India exercising appellate jurisdiction over the High Courts by way of the widest power under Article 136 he would be cognisant of the need to ensure that the highest quality was maintained in the appointment of Judges of the High Courts. Indeed, he is expected by the Constitution to keep himself adequately informed of the affairs of each High Court. For it is not merely for the purpose of appointing a Judge to the High Court under clause (1) of Article 217 that he is to be consulted. The President is also obliged to consult him be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly relevant to the purpose of the appointment. It may be reiterated that the departure made by clause (1) of Article 217 of our Constitution from Section 220 of the Government of India Act, 1935 clearly establishes that the advice tendered by the judicial functionaries was considered to be a safeguard against arbitrary appointments and therefore entitled to the greatest weight. It may be pointed out that appointments in England to the Court of Appeal, to the Judicial committee of the House of Lords and to the offices of Lord Chief Justice, and President of the Family Division are made on the advice of the Prime Minister after consultation with the Lord Chancellor, and the likelihood that the Prime Minister may depart from the recommendations of the Lord Chancellor can be contemplated only in the most exceptional case . (J. A. G. Griffith : THE POLITICS OF THE JUDICIARY, pp. 17, 18)890. At the same time I am unable to accept the contention that as the Constitution stands today the President is obliged in all cases to agree with a recommendation in which the Chief Justice of the High Court and the Chief Justice of India have concurred. During the Constituent Assembly Debates a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority possessing the advantage of direct and intimate knowledge of the requirements of the Court and generally also of the person recommended, and thereafter he will advise whether he endorses the recommendation. In that sense, it can be said that the recommendation of the Chief Justice of the High Court is screened through the assessment made by the Chief Justice of India. The screening is a logical result of the Chief Justice of India being brought in to express his opinion on the recommendation. In passing, it may be observed that if any material comes into the possession of the Chief Justice of India which was not before the Chief Justice of the High Court it should be communicated to the Chief Justice of the High Court for his comments. When the advice of the Chief Justice of the High Court and to the Chief Justice of India is placed before the President, the President will consider both and assess them in the light of the positions held, and the advantages possessed, by the respective functionaries in relation to the recommendation, and also bear in mind that while the Chief Justice of the High Court has the advantage of proximity in relation to the High Court and generally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of arrears of work therein it appears to the President that the number of Judges should for the time being be increased. The two conditions control the exercise of the power, and if neither is satisfied there can be no case for appointing an Additional Judge. The increase in the business of the High Court must be temporary and should be capable of being disposed of within a short period. Likewise, the arrears of work should be such that they cannot be expected to endure long. Inasmuch as the period of appointment of Additional Judges is prescribed as a maximum of two years, it is only where the disposal of the temporary increase in the business of the High Court or the pending arrears of work is expected to take about two years at the most that a case for appointing Additional Judges arises. If the increase in the business of the High Court or the volume of arrears of work is of a magnitude which cannot ordinarily be disposed of within two year, it is a case where the business or work must be regarded as an accretion to the regular business or work of the High Court, calling for an increase in the strength of permanent Judges. A person appointed as an Additional Judge under claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment must be for two years. The appointment of an Additional Judge may be for a period less than two years, and the period will be determined with reference to the time estimated for disposing of the temporary increase in the business or the pending arrears of work which occasioned the appointment. The period of appointment cannot be fixed on the basis of any other factor. Where, as observed earlier, the work or business is not completed within two years and calls for a further appointment of Additional Judges, the duration of the further appointment will be conditioned again by the time as assessed for disposing of the remaining business or work. But it is to be distinctly borne in mind that Additional Judges can be appointed only where the temporary increase in the business of the High Court or the arrears of work can be expected to be disposed of within a period of two years and not very much more. If Additional Judges are appointed for successive periods of two years or more it is clearly a case where the increase in the business of the High Court or the volume of the arrears of work does not call for the appointment of Additional Judges but for a review of the number of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice gave them an unfair advantage over their colleagues and was embarrassing to the administration of justice. Therefore, the Constitution as originally enacted did not contain any provision for the appointment of Additional Judges. Subsequently, however, because of persisting arrears of cases in most High Courts, the need was felt for making such provision and it was inserted as clause (1) of Article 224 by the Constitution (Seventh Amendment) Act, 1956. It was thought that the evil of Additional Judges reverting to the Bar could be prevented by absorbing them as permanent Judges, and in some High Courts this was sought to be secured by obtaining from persons appointed as Additional Judges an undertaking at the time of such appointment that they would not refuse appointment as permanent Judge if it was offered to them. In a few High Courts a further undertaking was secured to the effect that in the event of the Additional Judge refusing appointment as permanent Judge or resigning before the offer was made he would not practice in that High Court or in any court or tribunal subordinate to it. It was intended that this practice should be extended to all High Courts, for a suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident recites that the appointment is of an Additional Judge for the limited period specified therein. The intention was to appoint an Additional Judge and for the period specified. It is not open to the Court to alter the terms of the warrant. Although it may be generally possible to say that the circumstances require an increase in the number of permanent Judges and not the appointment of Additional Judges, it is for the President under Article 216 to determine what should be the number of permanent Judges. The Court cannot by judicial verdict decide how many permanent Judges are required for the High Court. And if it is not competent to do so, it can neither regard the appointment of Additional Judges as an appointment of permanent Judges nor can it issue a direction to the Government that the Additional Judges should be appointed now as permanent Judges. 896. But while an Additional Judge may not have a right to be deemed to be a permanent Judge or be entitled to a direction that he be so appointed, none the less he has, in my view, a right to be considered for such appointment. His case must be distinguished from the case of a person considered for direct appointment as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or further appointment as Additional Judges in the terms already set forth. That will be so in the case of all Additional Judges appointed to that office in the framework of the circumstances to which I have adverted.897. The next question to be considered is whether the consideration of persons serving as Additional Judges for appointment to the office of permanent Judges envisages a fresh application of the process envisaged under clause (1) of Article 217 in respect of all the matters to which consideration has already been given at the time of their appointment as Additional Judges. On behalf of the petitioners it is contended that the process of consultation must be confined to the question whether a vacancy in the office of permanent Judge has arisen, or, if no such vacancy has arisen, whether the High Court continues to suffer from a temporary increase in its business or by continuing arrears of work inasmuch as suitability for holding the office of Judges had already been determined when they were appointed Additional Judges. It is pointed out, and that is conceded by the learned Attorney-General, that the Additional Judges cannot be considered to be Judges on probation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be heard in regard to material discovered against him, I have no doubt that for the purpose of discharging responsibilities involved in the process of consultation the Chief Justice of the High Court and the Chief Justice of India will find it desirable in their discretion to ascertain from him whether there is any substance in what has been conveyed to them. In doing so, the two judicial functionaries will not be conceding a right of hearing to such a person. For a right to be heard involves an enquiry of certain dimensions well known to the law. In doing so, the two judicial functionaries will be acting within the scope of their legitimate duty of giving advice to the President if for that purpose they acquaint themselves fully and truly, so far as they reasonably conceive it necessary, to collect all available relevant information. Surely if it is open to them to gather information from other sources there is no valid reason why they should exclude the one person who would be in personal possession of material concerning information operating to his detriment. But much will depend on the circumstances of each case. What needs to be considered is that the constitutional duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. So also, all the material in the possession of the President must be placed before the Chief Justice of India and the Chief Justice of the High Court. A continuous process of consultation between all three authorities is mandated, resulting ultimately in advice tendered to the President by the Chief Justice of the High Court and the Chief Justice of India. It is not necessary for me to enter into the other questions raised in the challenge directed against the decision of the Union Government not to appoint Shri S. N. Kumar as an Additional Judge for a further term. It seems to me sufficient to say, on a review of the material before me, that there was no effective and full consultation between the President and the Chief Justice of the High Court of Delhi on the hand, and the Chief Justice of India on the other. The facts may be recounted briefly.900. Shri S. N. Kumar was appointed an Additional Judge of the High Court of Delhi for a period of two years by a notification dated March 6, 1979, and he assumed charge of his office the next day. Shortly before the expiry of that period, the Chief Justice of the High Court of Delhi addressed a letter dated February 19, 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his letter to the Chief Justice of India and he informed the Law Minister that he had had an opportunity to discuss the entire matter in detail with the Chief Justice of India . He added :Perhaps you will consider this to be sufficient 'comments' on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter. In reply, the Law Minister wrote back on April 15, 1981 to the Chief Justice of the High Court pointing out that you must have had some material which provided the basis on which you concluded that Justice Kumar's reputation for integrity was not above-board and recommended that he may not be continued. In view of the observations of the Chief Justice of India asking for concrete material, it would be necessary for us to have it with your comments. Quite evidently, the Law Minister intended that the material should be available to the Chief Justice of India also, so that all the material should be considered by both of them. Thereafter, the Chief Justice of High Court wrote a letter D.O. No. 296-HCJ/PPS dated May 7, 1981, bearing the caption Secret (for personal attention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. These suits were Suit No. 1409 of 1979, Suit No. 1417 of 1978 and Suit No. 1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt. Ltd. against the New India Assurance Co. Ltd. In August, 1980, the same colleague of mine who talked to me earlier and another colleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis-a-vis the aforesaid cases and some others. Since I was only acting as Chief Justice at that time, I did not want to take any precipitate action. I, however, made discreet inquires from some of the leading counsel and they in strict confidence supported the allegations. This made me look into the matter more carefully when to my astonishment I found that it was not only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench. There is fairly a long list of those cases. In some of these the parties involved were rich and influential including some former princes. After I was appointed Chief Justice early in January, 1981, I looked into this matter a little more deeply and made further inquiries. Some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Justice, Delhi.He went on to observe that on the question of the integrity of Mr. Justice Kumar, the views of the Chief Justice of the High Court be preferred because he had the advantage of watching the work and conduct of the Judge. 903. The first point to consider here is whether the information contained in the letter dated May 7, 1981 of the Chief Justice of the High Court was ever made known to the Chief Justice of India. There is no dispute that the Law Minister, in deference to the wishes of the Chief Justice of the High Court, did not communicate that information to the Chief Justice of India. The dispute centres on whether the Chief Justice of the High Court had ever conveyed the particular information to the Chief Justice of India. In my view, he never did so. There were no doubt meetings between the Chief Justice of India and the Chief Justice of the High Court when the question relating to the integrity of Shri S. N. Kumar was discussed. Originally, the Chief Justice of the High Court had spoken in the most general terms of complaint against the Judge. It seems that subsequently on March 26, 1981 the Chief Justice of the High Court told the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything more, could have been regarded at the worst as a mere irregularity. It took on a different complexion when considered in the light of the more damaging allegations made in the letter of May 7, 1981. I do not find anything on the record from which it can be presumed that this material was ever conveyed by the Chief Justice of the High Court to the Chief Justice of India. When all the correspondence and the affidavits on the record before us are considered together, that appears to be the only conclusion. It is strengthened by the insistent request of the Chief Justice of the High Court to the Law Minister that the letter of May 7, 1981 should not be disclosed to the Chief Justice of India.904. What is the effect of that omission ? It is clear that the Chief Justice of India had, for the purpose of rendering his advice in the process of consultation, decided to make enquiry from Shri S. N. Kumar concerning the allegations against him. He had enquired, and Shri Kumar had explained, about the Judge continuing to hear part-heard cases even after he had been moved to the appellate jurisdiction of the court. Had the allegations contained in the letter of May 7, 1981 been communica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontent of the power to transfer a Judge from one High Court to another under clause (1) of Article 222. The issues raised are of great importance to the administration of justice and undeniably can produce far-reaching consequences. 906. The matter has already received the attention of this Court in Union of India v. Sankalchand Himatlal Sheth and the majority opinion expressed therein is that the consent of the Judge is not essential to his transfer. It is urged that the view requires reconsideration and that we, as a larger Bench, are competent to do so. 907. It is desirable in the first place to trace the history of the provision. Almost from the inception of the High Courts in India, Judges appointed to one High Court were thereafter appointed to another High Court. The practice continued under the Government of India Act, 1935. The Government of India Act did not contain any provision corresponding to Article 222 of our Constitution. But by Section 2 and sub-section (1) of Section 6 of the India (Miscellaneous Provisions) Act, 1944 statutory recognition was given to the practice by enacting with retrospective effect clause (c) in the proviso to sub-section (2) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they should be liable to be transferred from one High Court to another. If such power was not reserved to the Centre the administration of justice might become a very difficult matter. It might be necessary that one Judge may be transferred from one High Court to another in order to strengthen the High Court elsewhere by importing better talent which may not be locally available. Secondly, it might be desirable to import a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government. We also took into account the fact that this power of transfer of Judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular Judge from its High Court because that Judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We have taken care that in effecting these transfers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. I think it is necessary to remove the impression that the Judges of the High Courts constitute a single All-India cadre. The constitutional scheme embodied in Chapter V envisages each High Court as a distinct entity from every other High Court. It is a complete, self-contained and self- sufficient institution, independent of the other and not related to them in any manner. Every High Court draws its own powers and jurisdiction from the provisions of the Constitution, and in no way does it share them with the other High Courts. When a Judge is appointed to a High Court, he is appointed to that High Court only. It is for that reason clause (c) of the proviso to clause (1) of Article 217 enacts that the office of a Judge shall be vacated by his being transferred to any other High Court. He is the holder of a distinct office, that of a Judge of the High Court to which he is appointed. It will be noticed that the consultative process envisaged in clause (1) of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill will and that I will uphold the Constitution and the laws. (Form No. VIII in the Third Schedule to the Constitution ) There is no All-India Service of High Court Judges. Article 214 speaks of a High Court for each State, and Article 216 plainly declares that the High Court shall consist of a Chief Justice and other Judges. The Chief Justice is a Chief Justice of that High Court only and so are the other Judges. The Judges of a High Court owe their responsibilities and discharge their functions in relation to, that High Court only. They have no constitutional connection and no legal relationship with the body of Judges of any other High Court. This position, in my view, cannot admit of any doubt. 910. That being the position how then can the transfer of a Judge from one High Court to another High Court be viewed in law ? A Judge appointed to a High Court is entitled to continue as a Judge of that High Court until he attains the age of 62 years, unless of course he resigns his office or is removed from it. His transfer to another High Court involves the vacation of his office in that High Court, that is to say, his appointment as a Judge of that High Court stands terminated. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident would take into account the interests of the two States concerned. In this regard, while there is no constitutional requirement expressly mentioned in clause (1) of Article 222, it is always open to the President and the Chief Justice of India to make necessary enquiries of the two States and the two High Courts affected by the transfer. The merit of involving the Chief Justice of India alone in the consultative process under clause (1) of Article 222 lies in this that the process of consultation can be more expeditiously completed and is to be preferred to the inevitably protracted process called for by a constitutional requirement involving two States and two High Courts. Whereas the Chief Justice of India can informally ascertain the views of the Chief Justices of the High Courts and satisfy himself whether he should advise in favour of the transfer, the President can similarly ascertain the views of the two States. The need for a formal presentation before the President of advice from the Chief Justices of the two High Courts, from the Governors of the two States and from the Chief Justice of India is thus eliminated.912. I shall now examine whether the power to transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm IV in the Third Schedule, the Form of Oath or Affirmation to be taken by the Chief Justice of India before entering upon his office refers to him as the Chief Justice of the Supreme Court of India. In clause (1) of Article 124, and throughout the other provisions in the body of the Constitution, he is described as the Chief Justice of India.913. It seems to me that clause (1) of Article 222 was specifically enacted in our Constitution for the purpose of empowering the President to transfer a Judge without necessarily securing his consent. The power was intended to be in the widest terms and subject only to the obligation to consult the Chief Justice of India. If transfer was conditioned further by the imperative of securing the consent of the Judge concerned, then having regard to past practice there was in fact no need to enact Article 222. A Judge can always be removed from one High Court to another with his consent. That had not infrequently been done during the ninety years of the High Courts in British India, and there was no reason why it could not have continued in the High Courts under our Constitution. But the framers of the Constitution intended a departure from that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... King's Bench Division and the Probate, Divorce and Admiralty Division. The puisne Judges of the High Court are attached to the several Divisions by a direction of the Lord Chancellor. Sub-section (2) of Section 4 of the Act provides that any such Judge may with his consent be transferred by a like direction from one of the Divisions to another. It will be noticed that although the three Divisions are part of the same High Court, none the less the statute expressly insists that on a Judge being attached to one of the Divisions he can be transferred to another Division only with his consent. The provision was reiterated in sub-section (4) of Section 1 of the Supreme Court of Judicature (Amendment) Act, 1944. 916. It is contended that the element of consent must be imported in clause (1) of Article 222 because a fresh oath or affirmation is necessary when a Judge enters upon his office in the other High Court, and whether he will make and subscribe such oath or affirmation rests necessarily within his volition. To my mind that consideration does not necessarily lead to the conclusion sought to be inferred. If a transferred Judge refuses to make and subscribe such oath or affir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refuse to admit the same. If the motion is admitted, the Speaker or the Chairman, will then constitute a Committee for the purpose of making an investigation into the grounds on which the removal is sought. The Committee consists of three members, one chosen from among the Chief Justice and other Judges of the Supreme Court, the other being a Chief Justice of a High Court and the third being a distinguished jurist. The Committee is required to frame definite charges against the Judge, and such charges together with the statement of the grounds must be communicated to the Judge, who will be given a reasonable opportunity of presenting a written statement of defence. Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by a Medical Board appointed by the Speaker or, as the case may be, the Chairman. The Medical Board undertakes the medical examination of the Judge and submits a report to the Committee. During the investigation, the Committee is obliged to give reasonable opportunity to the Judge of cross-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the President to consult the Chief Justice of India. The Constitution expects the Chief Justice of India to ensure in the process of consultation that the power to transfer is not used arbitrarily against a Judge of a High Court, that it is not employed as a disguise for punishing him, and that, even if the ground for the proposed transfer is made out, it will be in the public interest to effect the transfer. In this regard, the consultation with the Chief Justice of India must, in my opinion, extend to the entire gamut of the grounds on which the transfer is proposed, even where the grounds are incorporated in a policy. The protection afforded to the Judge by the obligation of consultation with the Chief Justice of India is intended to be a complete protection. It must be borne in mind that the Judge concerned is entitled to continue in the High Court to which he has been appointed for the full period of his tenure. It has already been observed that the transfer can be effected without the consent of the Judge. It is, therefore, necessary to construe the scope of the safeguard of consultation in its fullest comprehension. To properly discharge his responsibility in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ankalchand Himatlal Sheth will be fully attracted. Chandrachud, J., as he then was, speaking for the majority of the Court, relying on what Bhagwati and Krishna Iyer, JJ. said in Samsher Singh v. State of Punjab observed : (SCC pp. 228-29, para 41) [T]hat 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 opportunity 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. (SCC p. 882, para 149) Krishna Iyer, J. observed : (SCC pp. 273-74, para 115) . . . [A]though the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily. and further : (SCC p. 274, para 115) It must also be borne in min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy framed and adopted in this behalf must be tested on the criterion of public interest, and it must be clearly understood that public interest means here the interest of the administration of justice. That is the sole purpose of the grant of the power under clause (1) of Article 222. Now, if the framing and adoption of a policy is an act of the President under the power conferred by clause (1) of Article 222, it must be subjected to consultation with the Chief Justice of India. That is an imperative condition grafted on the exercise of all power relating to the transfer of Judges of the High Courts. That the framing and adoption of a policy should be governed by that condition is easily explicable if it is appreciated that the policy constitutes the basic consideration entering the order of transfer. All considerations controlling the transfer of a Judge of a High Court must fall within the scope of the consultative process. The Constitution intends that the Cheif Justice of India should be consulted before a transfer is ordered by the President. The consultation must travel over the entire area of consideration which prompts the transfer. The scope of consultation is not limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed as related to public interest.925. An examination of the several affidavits and of the correspondence between the Government and the Chief Justice of India discloses the following facts : 926. The Chief Justice of India decided on visiting the High Court of Patna in February 1980 in order to meet the Judges of the High Court and members of the Bar. After informing Shri K. B. N. Singh, Chief Justice of the High Court of his proposed visit, he proceeded to Patna and during his stay there on February 24, 25 and 26, 1980 he met the Judges of the High Court individually and interviewed individual members of the Bar, and also met Judges of the District Court and members of the District Court Bar. Of twenty advocates of the High Court whom he met, there were fifteen senior advocates suggested by Shri K. B. N. Singh. He also met the members of the Advocates' Association collectively at a function arranged by them. Among other things he had also come to know that Shri K. B. N. Singh's mother was old and infirm and not in a good state of health. At that time he did not indicate to Shri K. B. N. Singh that there was any proposal to transfer him to another High Court because at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the transfer of Shri M. M. Ismail, Chief Justice of the High Court of Madras, as Chief Justice of the High Court of Kerala and the transfer of Shri K. B. N. Singh as Chief Justice of the High Court of Madras. On January 5, 1981, the Chief Justice of India telephoned Shri K. B. N. Singh and informed him of the likelihood of his transfer to Madras. He asked him if he had anything to say in the matter. Shri K. B. N. Singh wished to know why he was being transferred and the Chief Justice of India informed him that it was Government policy and that it was proposed to transfer Shri M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place. Shri K. B. N. Singh informed the Chief Justice of India on the telephone that his mother was bedridden and she was not in a position to go with him to Madras. No other personal difficulty was disclosed. Shri K. B. N. Singh also observed that if his transfer was insisted on he would prefer to resign. The Chief Justice of India requested him not to act in haste but to give the matter close thought, and he added that he was also making a note of the difficulty mentioned by him and it will have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Patna to the High Court of Madras, and keeping in mind the telephone conversation between them on January 5, 1981 and the personal discussion on January 8, 1981 it is apparent that Shri K. B. N. Singh was being transferred not because of any wrong or fault on his part or for any conduct for which blame could be attached to him, but because people were exploiting their proximity to him in matters which had created dissatisfaction and unnecessary misunderstanding in the High Court at Patna. It is also apparent that Shri K. B. N. Singh was aware that such a situation prevailed because he attempted to clear himself of any blame in connection with what was happening. He was invited by the Chief Justice of India to say whatever he wanted to in the matter which according to him had created dissatisfaction about the working of the High Court . It is clear that the matter was discussed fully between the Chief Justice of India and Shri K. B. N. Singh and the latter had ample opportunity to say what he wanted to. And it is also clear that the proposal to transfer him from Patna was not by way of punishment. It is unfortunate that a situation had been allowed to develop in legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and on the telephone. It is perfectly within the realm of credibility that what had passed between the Chief Justice of India and Shri K. B. N. Singh on January 8, 1981 had also been communicated to the Law Minister and the Prime Minister before the order of transfer was signed by the Prime Minister. 929. A point was raised that the Chief Justice of India had averred in his affidavit that the consultation was effected between him and the President of India and not that the consultation took place between him and the Law Minister and the Prime Minister. To my mind, it is clear that the Chief Justice of India is referring to the President in the sense of the Executive Government . This is amply borne out by the large volume of documentary material which shows that the Chief Justice of India was in communication with the Law Minister and the Prime Minister only. There is nothing to suggest that he met the President personally in this matter.930. It is also contended that the proposal to transfer Shri K. B. N. Singh had already been made by the Chief Justice of India to the Government as early as December 1980 and this was before any discussion on the point between him and Shri K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken. It seems to me beyond dispute that the matter did not stand closed merely because of the proposal made in December 1980 to transfer him.931. Then it is urge that clause (1) of Article 222 contemplates that the process of consultation should be initiated by the President by a reference of the matter to the Chief Justice of India for his advice and that instead it is the latter who has initiated the process. I do not see any substance in this point having regard to the continuous consultation which was going on between the Chief Justice of India and the Government. 932. I shall now deal with the task of identifying the consideration which prevailed with the Chief Justice of India and the Government in transferring Shri K. B. N. Singh, and whether it can be said that those considerations fall within the expression 'public interest'. 933. When a Judge permits his judgment in a case to be influenced by the irrelevant considerations of cast and creed, of relationship or friendship, of hostility or enmity, he commits a breach of his oath. It is a case where justice is not done and is denied. It is a case of misbehaviour, to which the provisions of Article 218 read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the policy from the judiciary, and discussions have taken place from time to time between, the Chief Justice of India and the Law Minister. The Government has proposed that the policy should be implemented not only by appointing the Chief Justice and one- third of the number of Judges to a High Court from outside the State at the time of their initial appointment to the office, but should also be taken in hand presently by the transfer of sitting Chief Justices and Judges. It has been further proposed by Government that the transfers should be effected simultaneously in all the High Courts.934. It seems from the material on the record that although the Chief Justice of India is in agreement with the need for appointment of Chief Justices and a number of Judges to the High Court from outside the State, he has not accepted yet the further suggestion of the Government that the transfer should be effected as a policy implemented en masse over all the High Courts. It seems that the Chief Justice of India is prepared to go so far only that the matter should be considered from case to case, on the objective merits of each case. This is evidently what he had in mind when he consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of Shri K. B. N. Singh. The learned Solicitor-General has stated from the Government records in his possession that the Law Minister consulted the Chief Minister of Tamil Nadu on January 3, 1981, the Chief Minister of Kerala on January 4, 1981 and the Chief Minister of Patna on January 6, 1981 in regard to the proposed transfers of Shri M. M. Ismail and Shri K. B. N. Singh. Learned counsel for Shri K. B. N. Singh points out that there was opposition by the Tamil Nadu Government to the induction of Shri K. B. N. Singh as Chief Justice of the High Court of Madras on the ground that he was not acquainted with the Tamil language and would find difficulty in coping with his duties in the High Court at Madras. It is said that if the Chief Justice of India had been informed of this objection, Shri K. B. N. Singh would not have been transferred. I have observed earlier that the Chief Justice of India had considered this matter long before, and did not consider it as a substantial difficulty.Validity of the Circular Letter dated March 18, 1981 issued by the Minister for Law, Justice and Company Affairs, Government of India 937. The circular letter was addressed by the Minister to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to my mind if the circular letter is regarded as intending to bind the Additional Judges it can have no such effect in law. An appointment of a person as a Judge of a High Court must, as observed earlier, be an appointment to a particular High Court. For the purpose of making such appointment, the constitutional process must be initiated with respect to a particular High Court. The Constitution does not contemplate a single process in relation to several High Courts, collecting as many persons as there are vacancies all over India, and then in the discretion of the Government appointing each of them where the Government pleases. To adopt this procedure will be to equate the appointment of Judges with the appointment of members of an All-India Service, a position which cannot constitutionally be countenanced. There must be a separate and distinct process in regard to appointment to each High Court. The Governor of the particular State and the Chief Justice of the particular High Court have to be involved in that process, besides the Chief Justice of India. It is in the course of such a process that a proposal for appointment is made to the person intended for appointment. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find general acceptance, and its pace will be determined by the education of experience. The past is ever with us, and when the present takes hold it must do so conscious of its responsibility to the future. The rules now developed by this Court relating to the disclosure of documents need to be carefully applied. The balance between the conflicting claims of public interest represented by officialdom and the public interest flowing from the administration of justice often calls for a delicate assessment, into which per force must enter considerations vital to the operations of Government on the one hand and the demands of adjudication on the other. The responsibility fixed on the Court is a serious one, and there is need to warn that this power which now vests in the Court can have grave consequences if the content of its potential is not truly appreciated and realised by those who wield it. Whenever a court breaks new ground, the development and recognition of new rights is often accompanied by the birth of problems surfacing also for the first time. New doctrines must be cautiously applied. Yet no court can shirk its duty if it finds that its power has been rightly invoked.943. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1981 cannot be acted on and that the Additional Judges concerned shall not be held bound by their consent, given in pursuance of the circular letter, to their appointment as permanent Judges of the High Courts other than those where they presently serve. In the Transferred Case No. 20 of 1981, the respondents are directed to reconsider the case of Shri S. N. Kumar for appointment as an Additional Judge of the High Court of Delhi for a further term. Writ Petition No. 274 of 1981 and Transferred Cases Nos. 2, 6 and 24 of 1981 are dismissed. 948. In all these cases, having regard to the circumstances, there is no order as to costs. Venkataramiah, J. - This judgment can be conveniently divided into fourteen parts thus : I. Introduction II. Locus standi of the petitioners III. The doctrine of political question IV. The status of High Courts V. Article 217(1) - Appointment of a Judge of a High Court - History - Process of consultation under article 217(1) - Is the opinion of the Chief justice of India binding on the President ? - Whether the Council of Ministers can tender advice to the President on the question of appointment of a Judge ? - Whether such advice interferes with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common judgment because common questions of law arise for consideration in them. A brief statement of facts involved in these cases is given below.952. Transferred Case No. 22 of 1981 had originally been filed in the High Court of Bombay under Article 226 of the Constitution. Later on it was transferred to the file of this Court by an order made under Article 139-A of the Constitution to be disposed of along with other connected cases. The petitioners in this case are Shriyuts Iqbal M. Chagla, C. R. Dalvi, M. A. Rane and Sorab K. J. Mody. They are Advocates practising in the High Court of Bombay. Respondents 1 and 2 in this case are the Union Law Minister and the Union of India. Respondents 3 to 12 are the Additional Judges of the High Court of Bombay appointed under Article 224(1) of the Constitution The above petition is filed questioning the validity of a circular letter dated March 18, 1981 addressed by the Union Law Minister to the Governor of Punjab and Chief Ministers (by name) (except the North-Eastern States) by which they were requested to obtain the consent of Additional Judges working in the High Courts to their appointment as Judges of the High Courts other than those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the petition and has further pleaded that by the impugned letter, the Union Government merely sought the consent of the Additional Judges and others who had been or who were to be proposed for appointment as Judges to the effect that they were willing to be initially appointed as Judges in other High Courts. It is stated that the consent of the Additional Judges has not been sought for their transfer under Article 222 of the Constitution. It is denied that there was any attempt to interfere with the independence of the judiciary. The policy of appointment of Judges in High Courts from outside is justified on various grounds set out in the affidavit. Accordingly the Union Government has prayed that the petition may be dismissed.953. Transferred Case No. 20 of 1981 was originally filed in the High Court of Delhi under Article 226 of the Constitution by Shri V. M. Tarkunde, Senior Advocate of the Supreme Court Bar after the Law Minister's letter of March 18, 1981 was written and three Additional Judges of the Delhi High Court Sarva Shri O. N. Vohra, S. N. Kumar and S. B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from March 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment to take a final view having regard to the complaints that had been received against some of them after consultation with the constitutional authorities. The petitioner's statement that both the Chief Justice of the Delhi High Court and the Chief Justice of India had recommended the appointment of these three Judges for a further period of two years is untrue and incorrect. It is strange as to how the petitioner could claim knowledge of the recommendations of the Chief Justice of India and Chief Justice of Delhi High Court. After careful consideration of the material available with it and after taking into account the views expressed by the Chief Justice of India and Chief Justice of Delhi High Court and after giving full consideration to the views of both, Government decided not to give appointments for a further term to Shri Justice O. N. Vohra and Shri Justice S. N. Kumar on the expiry of their term on June 6, 1981. Shri Justice Wad was, however, appointed for a further period of one year from June 7, 1981. It is neither necessary nor advisable to disclose to the Additional Judges the reasons for their short-term appointments or for their non-appointment since this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court of Allahabad for short terms of six months on the expiry of the period specified in their warrants of appointment under Article 224(1), the alleged misuse of Article 224(1) of the Constitution by the Union Government in making appointments of Additional Judges where permanent Judges had to be appointed and several other matters urged in the petition, the petitioner filed the above petition requesting the Court to issue appropriate directions having regard to the submissions made in the petition and principally he has prayed for a declaration that the three Additional Judges - Mr. Justice Murlidhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mithal must be deemed to have been appointed as permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister is void. The reliefs prayed for by the petitioner more or less are identical with the reliefs in Transferred Case No. 22 of 1981. The allegations made in the petition and in the counter-affidavit will be dealt with in the course of the judgment as many of them are common to all these cases.957. Writ petition No. 274 of 1981 is filed by Miss Lily Thomas, an Advocate practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued or debated.959. Mr. Justice M. M. Ismail has since resigned from his office. 960. Transferred Case No. 2 of 1981 was originally filed under Article 226 of the Constitution in the High Court of Madras by Shri A. Rajappa, an Advocate practising in Madras. He has prayed for a declaration that the orders of transfer passed by the President on January 19, 1981 transferring Mr. Justice M. M. Ismail, Chief Justice of the Madras High Court as the Chief Justice of the Kerala High Court and the transfer of Mr. Justice K. B. N. Singh, Chief Justice of the Patna High Court as the Chief Justice of Madras High Court are void. The principal grounds urged in the petition are that the transfers in question interfere with the independence of the judiciary, a transfer without consent of a Judge is ultra vires under Article 222 of the Constitution and non-consultation with the Governor concerned amounts to violation of Article 217(1) of the Constitution which should precede the appointment of a Chief Justice. The transfer of a Judge who does not know Tamil language to the High Court of Madras would not be in the public interest. There is also a plea that the transfers suffer from mala fides. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter full and effective consultation with the Chief Justice of India in the public interest keeping in view all relevant considerations. The Chief Justice of India has also filed a counter-affidavit to which detailed reference will be made in due course stating inter alia that Mr. Justice K. B. N. Singh had been transferred keeping in view all relevant matters in the public interest and not on any ground touching his character and conduct as a Judge.963. India, that is Bharat, is a Union of States. It is not a federation of States like the United States of America. The word 'federation' is not used in the Constitution of India. There is no dual citizenship in India as we find it in the United States of America. The Constitution of India contemplates only one citizenship, only one loyalty and only one sovereignty. The geographical area covered by the States and the Union territories mentioned in the First Schedule to the Constitution and such other areas that may be acquired constitute the territory of India which is an indivisible and indestructible whole though for administrative convenience is divided into State and Union territories. Parliament may by law form a new Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... securing to all citizens of India, justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The said joint endeavour involves cooperation, mutual sympathy and understanding amongst all the organs. The Constitution demands that there should be mutual trust amongst them and there should be no room for suspicion. Distrust and a feeling of suspicion on the part of any of the organs of the State towards any other organ is bound to result in a great national calamity. We have worked the Indian Constitution for more than thirty years. The Constitution has undergone many changes. At the end of three decades of experience one is bound to feel in the same way in which Thomas Jefferson felt about the Constitution of the United States of America in 1816. He wrote to Samuel Karcheval on July 12, 1816 :Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than hum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f locus standi do not appear to be uniform. They vary from country to country, court to court and case to case. Sometimes the tests applied by courts also vary depending upon the nature of the relief sought. In some cases courts have taken a very narrow view on this question holding that unless an applicant has either personal or fiduciary interest in the result of the application, no relief can be granted on his application even though it may appear that the impugned action or omission of the administrative authority concerned is not in accordance with law. The other extreme view is that the courts may in their discretion issue mandamus to an administrative authority at the instance of any member of the public. A close scrutiny of the authorities and texts cited before us shows that neither of the two extreme views is accepted as correct in majority of the cases. It is also seen that in many of them the courts have found some sort of special interest in the applicant which distinguishes him from the general public before granting the relief prayed for by him. A person who has a genuine grievance on account of an action which affects him prejudicially is ordinarily considered to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. And that we will do, whatever befall. Nothing shall deter us from doing our duty. 971. After his decision was reversed by the House of Lords, Lord Denning in his book entitled The Discipline of Law at page 144 wrote thus :In administrative law the question of locus standi is the most vexed question of all. I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this or that Government department - or this or that local authority - or this or that trade union - is abusing or misusing its power - I always like to hear what he has to say. For I remember what Mr. T. P. Curran of the Middle Temple said in the year 1790 : 'It is ever the fate of the indolent to find their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance.' The ordinary citizen who comes to the Court in this way is usually the vigilant one. Sometimes he is a mere busybody interfering with things which do not concern him. Then let him be turned down. But when he has a point which affects the rights and liberties of all the citizens, then I would hope that he would be heard : for there is no other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew shall be made unless the leave of the Court has been obtained in accordance with this rule. (2) An application for leave must be made ex parte to a Divisional Court of the Queen's Bench Division. (3) (4). . . . (5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. . . . 974. It appears that Order 53 was designed to stop technical procedural arguments of many types which had marred the true administration of justice, and to provide a machinery to determine at the preliminary stage of the granting of leave to prosecute an application for judicial review, whether the applicant has a sufficient interest in the matter to which the application relates. The phrase 'sufficient interest' which, it is stated, owed its origin to an interlocutory observation made by the Court in R v. Cotham (1898 1 QB 802, 804 : 67 LJQB 632 : 46 WR 512) and to its use by Avory, J. in his judgment in Ex parte Stott [1916] 1 K.B. 7, 9 : 85 LJKB 502 : 114 LT 234 (DC)) embraced all kinds of phrases 'a party', 'a person aggrieved', 'a person with a particular grievance' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precluded the possibility of any other taxpayer or group of taxpayers from having any 'sufficient interest' in the performance by the Revenue of their statutory duties. The House of Lords held inter alia that whether an applicant for mandamus had a sufficient interest in the matter to which the application related, for the purposes of Order 53, Rule 3(5) depended on whether the definition (statutory or otherwise) of the duty alleged to have been breached or not performed expressly or impliedly gave the applicant the right to complain of the breach or non-performance. Since the tax legislation, far from expressly or impliedly conferring on a taxpayer the right to make proposals about another's tax or to inquire about such tax, in fact indicated the reverse by reason of the total confidentiality of assessments and negotiations between individuals and the Revenue, and since on the evidence the Revenue in making the impugned arrangement were genuinely acting in the care and management of taxes under the powers entrusted to them, the application made by the applicant should be dismissed because the applicant did not have a sufficient interest for the purposes of Rule 3(5), o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n out of which the present appeal has arisen ? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Centre. The said committee collected ₹ 10,000 and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the Committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra (Calcutta Gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was entitled to file an appeal under Section 37 of the Advocates Act. The entire decision was based on the construction of the provisions (as they stood then) of the statute concerned, as it appeared to the Bench which decided the case. It may be noted that Section 37 of the Advocates Act has since been amended authorising the Advocate General of a State expressly to file an appeal. In Bar Council of Maharashtra v. M. V. Dabholkar , the interpretation of the words 'person aggrieved' in the Advocates Act, 1961, again came up for consideration by this Court. In that case the right of the State Bar Council to file an appeal against the decision of the Bar Council of India before this Court was challenged on the ground that it was not an aggrieved party. That contention was negatived by Ray, C.J. by giving a liberal interpretation to the words 'person aggrieved' with the following observations at SCR page 315 : (SCC pp. 710-11, paras 27-30)The words 'person aggrieved' are found in several statutes. The meaning of the words 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. Sometimes, it is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interested in the rights and privileges of the advocates as well as the purity and dignity of the profession. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the disciplinary committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar. 979. The above two decisions are in cases in which writs in the nature of certiorari were sought. This Court has however in cases in which writs in the nature of habeas corpus or of quo warranto are prayed for relaxed the rule that ordinarily an applicant under Article 226 should show that some personal right or fiduciary interest is prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; observed at SCR pages 76-77 thus : (SCC pp. 588 589, paras 47 48) In the present case a worker, who, clearly, has an interest in the industry, brings this action regarding an alleged wrongdoing by the Board of Management. Article 43-A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector. Locus standi and justiciability are different issues, as I have earlier pointed out. . . If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But, if he belongs to an organisation which has special interest in the subject-matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Supreme Court Bar. One important prayer made by them is that the Government should be directed to appoint sufficient number of permanent Judges in every High Court. The other points urged by them are that Additional Judges should not be appointed for short terms like three months or six months, that Judges should not be transferred from one High Court to another without their consent and that the circular letter of the Law Ministry should be quashed. Their principal submission is that appointment of Additional Judges for short terms and their transfer without their consent would interfere with the independence of the judiciary and would violate the directive principle of State policy contained in Article 50 of the Constitution which requires the State to take steps to separate the judiciary from the executive in the public services of the State. Whatever may be the position with regard to the other prayers made in these petitions, it is difficult to hold that on the first two questions the petitioners can be held to be having no 'standing' to file the petitions. It is no doubt true that the power to fix the number of permanent Judges to be appointed in each High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the ground of locus standi. The petitioners satisfy all the tests which are laid down in the decisions refereed to above to maintain the petitions on the two questions referred to above. During the pendency of these petitions, two further circumstances have come into existence. Mr. S. N. Kumar who was an Additional Judge of the Delhi High Court when the petition of Shri V. M. Tarkunde was filed in the High Court has ceased to be an Additional Judge as his term was not extended beyond June 6, 1981. He has, though as a respondent, by filing necessary pleadings questioned the action of the Government in not extending his term and also the validity of the circular letter of the Law Minister. In the case relating to the transfer of Shri K. B. N. Singh, Chief Justice of Patna High Court as Chief Justice of Madras High Court, he has been permitted to be transposed as the petitioner. He has filed an additional affidavit challenging the order of transfer. In view of these new circumstances much of the sting in the objection to the locus standi of the original petitioners to file the petitions is lost. It must also be stated that the learned Attorney-General also stated at the commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves rise to civil actionability. They have, in the other cases, directly held it sufficient for a mandamus applicant to establish a 'special interest' in order to have locus standi. As has been seen, the various judicial pronouncements requiring an applicant to show that the duty the performance of which is sought to be secured is one owed to him personally may be discounted since they were designed to bring out the point that where the repository of the duty was a crown servant, it was imperative for the applicant to show that the duty was not one owed to the Crown, but that it was imposed on the Crown servant as persona designata and hence amenable to mandamus. On balance, the weight of authorities favour the more liberal 'special interest' test under which the courts have accorded standing to persons who have a direct and substantial interest at stake. This is necessarily a matter of judicial discretion. However, the preponderance of cases reveal that -(1) Where the duty sought to be enforced is imposed on a public official or a public body for the benefit of a specific class of persons, persons within the class are competent to apply for mandamus without further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle is between the workers and employers and the Union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, thought formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances, fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, rough-and-ready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to approach the Court to direct the Government to appoint sufficient number of permanent Judges and to appoint sufficient number of Additional Judges for the maximum period of two years having regard to the arrears and the business of the Court. They may also legitimately agitate that Additional Judges should not be appointed when permanent vacancies have remained unfilled for no good reason. 989. It has, however, to be made clear that it cannot be said that lawyers only because they have a right to practise in a court have 'locus standi' to file petitions in respect of every matter concerning judges, courts and administration of justice. There are many such matters in which they have no 'locus standi' to ask for relief. By way of illustration, lawyers cannot question the establishment of a new court on the ground that their professional prospects would be affected thereby. (See V. R. Mudvedkar v. State of Mysore, : 1971 1 Mys LJ 188) Even in these cases on the question of non-appointment of Mr. S. N. Kumar and on the question of transfer of Mr. K. B. N. Singh, the lawyer-petitioners may have no voice. But for the active participation of these two persons, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1908, . . . government is not a machine but a living thing. . . No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose... Their cooperation is indispensable, their warfare fatal. (Wilson : CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES, 1980 p.56) 993. Each one of the organs of the State - the legislature, the executive and the judiciary - has to discharge its legitimate duties having sound administration as the common goal. 994. The doctrine of political question was examined in the year 1962 by the Supreme Court of the United States of America in Baker v. Carr 369 US 186 : 7 L Ed 2d 663 : 82 S Ct 691 1962). That was a civil action in which the complaint was that the plaintiffs and others similarly situated had been denied equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States of America by virtue of debasement of their votes by reason of unconstitutional division of their electoral area situated in the State of Tennessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly diverted House funds, had made false reports regarding foreign currency etc. Powell along with some others who were voters in the constituency then filed a suit claiming that the House could exclude him only if it found that he failed to meet the standing requirements of age, citizenship and residence contained in Section 2 of Article I of the Constitution of the United States of America and thus had excluded him unconstitutionally. The District Court dismissed the suit for want of jurisdiction over the subject-matter. The Court of Appeal affirmed the dismissal although on somewhat different grounds. One of the points raised before the Supreme Court of the United States of America was that the question involved was a political question and hence was not justiciable. The Supreme Court held that it was an error to dismiss the suit and remanded it for disposal in accordance with law. Chief Justice Warren who spoke for the Court disposed of the defence based on political question at page 532 thus : 25. Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a potentially embarrassing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause a question has a political colour, the Court cannot fold its hands in despair and declare Judicial hands off . So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is suprema lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the standards and methods of administration. Such a state of affairs not only weakens the State but becomes intolerant to the citizen who moves from State to State only to find that what is lawful in one State is not lawful in another. The Draft Constitution has sought to forge means and methods whereby India will have Federation and at the same time will have uniformity in all the basic matters which are essential to maintain the unity of the country. The means adopted by the Draft Constitution are three -(1) a single judiciary, (2) uniformity in fundamental laws, civil and criminal, and (3) a common All-India Civil Service to man important posts. A dual judiciary, a duality of legal codes and a duality of civil services, as I said, are the logical consequences of a dual polity which is inherent in a federation. In the USA the Federal Judiciary and the State Judiciary are separate and independent of each other. The Indian Federation though a dual polity has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law or the crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution : Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.1004. Some of the High Courts came to be constituted or reconstituted after the commencement of the Constitution under different laws made by the Parliament. An analysis of the various provisions of the Constitution and other laws having a bearing on the question shows that every High in India is an integral part of a single Indian judiciary and Judges who hold the posts of Judges of High Courts belong to a single family even though there may be a slight variation in two of the authorities who are required to be consulted at the item of the appointment. The provisions dealing with the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts. 1007. It is today quite possible for the Parliament to pass a common High Courts Act governing all the High Courts in India replacing the existing laws governing them. 1008. The appointment of a Judge of a High Court is made by the President in consultation with the Chief Justice of India, the Governor of the State concerned and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. A Judge may by writing under his hand addressed to the President resign his office. He is removable from office by the order of the President passed after an address by Parliament presented in the manner provided in Article 124(4) of the Constitution for the removal of a Judge of the Supreme Court. Article 222 of the Constitution states that the President may after consultation with the Chief Justice of India transfer a Judge from one High Court to any other High Court without any kind of consultation with the Governors of the States concerned or the Chief Justices of those High Courts. Article 224-A of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Committee of the Privy Council on a reference being made to them by His Majesty reported that he ought on any such ground to be removed. The appointment of a Judge of a High Court under the Government of India Act, 1935 was thus a Crown appointment. The Governor-General was, however, given the power under Section 222 of that Act to appoint Additional or acting Judge on behalf of the Crown for a temporary period. There was no requirement of any consultation with any specified judicial authority. When Section 220 of the Government of India Act, 1935 came up for discussion before the House of Commons in order to ascertain whether the appointments of High Court Judges was subjected to political pressure or not, a question was raised in the following way : The Crown must, of course, have nominations made to it. Will those nominations be made by the Ministers, or will they be put forward by the Governor acting in this discretion ? 1010. The above question was replied by the Solicitor-General of His Majesty's Government thus : I do not think there is any thing to fetter the Secretary of State in making inquiries from the Governor-General, the Governor or any body he thinks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appointment of the highest judicial officers in the country which, under the existing Constitution, has so far remained on the whole free from such influences, the Governor-General and the Governors not being elected nor owing their appointment to political parties in this country. It is therefore suggested that Article 193(1) may be worded in the following or other suitable manner : Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.... We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to 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 appointment should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per chance such a situation were ever to arise it could of course be met by the President mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing a penalty on him at the end of a disciplinary enquiry and non-compliance with Article 320(3)(c) did not vitiate any such punishment, particularly when due enquiry had been held in accordance with Article 311 of the Constitution and no defect in such enquiry had been pointed out. In reaching that conclusion, the Court depended upon the statement in Crawford on Statutory Construction which was to the following effect :The question as to whether a statutes is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. . . . 1016. The words prescribing the consultation machinery in Article 217(1) of the Constitution have to be construed in the context of the broad purposes and the general scheme of that provision; its history, its object, and the result which it seeks to achieve. It is equally necessary that the Court while construing a constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice of India should be treated as final and binding on the President, having regard to the position of primacy assigned to the Chief Justice of India by the Constitution regarding matters connected with the Indian judiciary. It is also submitted that the Council of Ministers can have no voice in matters of appointment of Judges. Both these contentions are repudiated by the Central Government. 1018. The question is whether Article 217(1) treats the opinion of any of the functionaries who have to be consulted thereunder and in particular of the Chief Justice of India as final and binding on the President. The Constitution has used different words signifying varying degrees of compulsive or binding character of the opinion of one constitutional dignitary or authority on the other wherever there is need for two or more of them participating in any decision-making process under the Constitution. They are, for example, 'shall act according to such opinion' (Article 103 and Article 192), 'consent' [Article 127(1), Article 128, Article 224-A and Article 348(2)], 'advice' (Article 74 and Article 150), 'concurrence' [Article 370(1)(b) (ii)], 'appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he highest administrative authority having the power to overrule the opinion of any other authority. From the specific roles attributed to each of them as explained above, which may to some extent be overlapping also, it cannot be said that the Chief Justice of India has been given any position of primacy amongst the three persons who have to be consulted under Article 217(1) of the Constitution. There are no express words conveying that meaning. The President has to take into consideration the opinions of all of them and he should not accept the opinion of any of them only on the sole principle of primacy. He has to take a decision on the question of appointment of Judges of the High Courts on the basis of all relevant materials before him.1020. Article 217(1) confers the power of appointment on the President, who ordinarily has to act on the advice of the Council of Ministers under Article 74(1) of the Constitution. Now we have to examine whether there is any compelling reason to hold that the Council of Ministers would have no voice in the matter of appointment of a High Court Judge and the opinion of the Chief Justice of India would be binding on the President. It is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication. A question of similar nature arising in respect of a member of the State Legislature has to be decided under Article 192 by the Governor concerned in accordance with the opinion of the Election Commission. Article 163(1) therefore becomes inapplicable by necessary intendment to such a case. It is thus seen that wherever the opinion of another authority alone is binding on the President or a Governor, as the case may be, the Constitution uses appropriate words conveying such meaning. 1022. Under Article 217(3) of the Constitution which provides for the determination of the age of a Judge of a High Court, the President has to decide the age of a High Court Judge after consultation with the Chief Justice of India and this Court has observed in Union of India v. Jyoti Prakash Mitter that the President cannot in deciding the case under Article 217(3) act on the advice of his Ministers. Here again Article 74(1) of the Constitution gets excluded by necessary implication. But that case stands on an entirely different footing. The function of the President under Article 217(3) is a judicial function and that makes all the difference. This Court observed in the said case at SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e weight which should be attached to the evidence. Appreciation of evidence is entirely left to the President and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion.1023. The power of appointment of a Judge of a High Court is an executive power and the analogy of Article 217(3) is, therefore, inappropriate. 1024. The power of the Governor with regard to matters connected with appointment or dismissal of judicial officers was construed by this Court giving the final voice regarding such appointment or dismissal only to the Governor under Article 233 of the Constitution notwithstanding the vesting of control over the subordinate judiciary in the High Court under Article 235 in the case of State of West Bengal v. Nripendra Nath Bagchi 789-790 . In that case Hidayatullah, J. (as he then was) reconciled and interpreted Article 233, Article 234, Article 235 and Article 311 thus : That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying. That does not impinge upon the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad v. Patna High Court the power of appointment of District Judges exercisable by the Governor in consultation with the High Court arose for consideration. This Court recognised in that case that the power to appoint District Judges was vested with Governor but that such power could be exercised only after a full and effective consultation with the High Court. It held that if the process of consultation was defective the appointment would become invalid. The Court did not, however, go to the extent of saying that any opinion expressed by the High Court was binding on the Governor. 1026. In Samsher Singh v. State of Punjab which is a judgment of a Bench of seven learned Judges of this Court, Chief Justice Ray observed at SCR page 843 thus : (SCC p. 857, para 88)For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making an appointment of a Judge was disposed of by Chandrachud, C.J. in In re The Special Courts Bill, 1978 para 96) with the following words - . . . the process of consultation has its own limitations and they are quite well known. The obligation to consult may not necessarily act as a check on an executive. . . . Later on the learned Chief Justice again observed at SCR pages 550-551 : (SCC pp. 435-36, para 97) Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay one may say that as a matter of convention, it is in the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope, howsoever past experience may justify them. The assurance that conventions are seldom broken is a poor consolati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls in the case of appointments of other Judges of the Supreme Court and the Judges of the High Courts.1032. Under Article 217(1) of the Constitution the President should, therefore, while making an appointment of a High Court Judge act on the advice of his Council of Ministers having due regard to the opinions expressed by the functionaries mentioned therein after a full and effective consultation. There is no scope for holding that either the Council of Ministers cannot advice the President on this matter or that the opinion of the Chief Justice of India is binding on the President although such opinion should be given due respect and regard. 1033. As a part of this very contention it is urged that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment. It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the Lord Chief Justice, the Master of the Rolls and the President of the Probate Divorce and Admiralty Division. It is commonly assumed that the Prime Minister is guided by the Lord Chancellor. The ordinary Judges of the High Court often called puisne Judges are nominated by the Lord Chancellor. The Lord Chancellor is responsible for the lesser judicial appointments. (See R. M. Jackson : THE MACHINERY OF JUSTICE IN ENGLAND, 1960 Edn., p. 232) 1036. In his letter written by the end of 1951 to Morse Erskine, a member of the California Bar, Lord Jowitt who was the Lord Chancellor in the Labour Government till October 1951, however, stated : I think that I can fairly say that we have established a tradition in which politics and influence (in the appointment of judges) are now completely disregarded. The Lord Chancellor selects the man whom he believes to be the best able to fill the position. In my own case I had an unusually large number of appointments, and I can only recall appointing two men who were members of my own party. You must remember these facts which help in establishing the tradition. The Inns of Courts are completely independent of any governmental con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utive. Nevertheless, the judiciary is substantially insulated by virtue of rules of strict law, constitutional conventions, political practice and professional tradition, from political influence. (Vide HALSBURY'S LAWS OF ENGLAND, 4th Edn., Vol. 1, para 5) 1039. In Australia the Justices of the High Court and of the other courts created by the Parliament are appointed by the Governor-General in Council [see Section 72(1) of the Commonwealth of Australia Constitution Act, 1900]. The appointment of federal Judges is a cabinet matter which is formally ratified by the Executive Council. It is stated that the practice is that the Attorney-General would recommend to Cabinet persons for appointment though it is the Cabinet which will make the final decision.1040. In Canada Judges of superior courts are appointed by the Governor-General. (Vide Section 96 of the British North America Act, 1867) 1041. In Japan, the Emperor appoints the Chief Judge of the Supreme Court as designated by the Cabinet and Judges other than the Chief Judge are appointed by the Cabinet. 1042. In India we have adopted the procedure contained in Article 217(1) of the Constitution for the appointment of Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinions expressed by the functionaries mentioned in Article 217. If there are conflicting opinions the President has to weigh them after giving due consideration to each of them and take a decision on the question. In any event it is difficult to hold that an advocate or a member of the Subordinate Judiciary whose name is approved by the Chief Justice of a High Court and the Chief Justice of India gets a vested right to be appointed as a Judge of a High Court. In fact he has no justiciable right at all. If for any reason he is not appointed he cannot move the Court to appoint him as a Judge of the High Court. The position of an Additional Judge who is currently holding office and who is not reappointed stands on a slightly different footing and his case will be considered at the appropriate place.PART VI 1044. The evolution of the system of appointing Additional Judges in the High Courts for such period not exceeding two years as the President may specify needs to be examined now. Appointment of a Judge who is a member of the superior judiciary for such short period appears to be peculiar to our country. Such practice is not prevailing in the United Kingdom. Even in India we do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned almost the same provisions which were found in Section 7 of the High Courts Act or the Charter Act, 1861 providing for the appointment of acting Chief Justice and acting Judges. But Section 101 of the 1915 Act however made provision for the appointment of Additional Judges. Sub-section (2) of Section 101 stated that each High Court should consist of a Chief Justice and as many other Judges as His Majesty might think fit to appoint. Clause (i) of the proviso to that sub-section authorised the Governor-General in Council to appoint persons to act as Additional Judges for such period not exceeding two years. Such provision for the appointment of Additional Judges of High Courts appears to have been made by this Act for the first time. 1049. Section 220 of the Government of India Act, 1935 as it was originally enacted provided that every High Court was to consist of a Chief Justice and such other Judges as His Majesty might from time to time consider it necessary to appoint. It further provided that the Judges so appointed together with any Additional Judges appointed by the Governor-General in accordance with law could at no time exceed in number such maximum number as His Maje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod not exceeding two years as he may specify. 1050. Article 166 of the Draft prepared by the Constitutional Advisor more or less adopted the language of Section 222 of the Government of India Act, 1935 with some modifications. The Drafting Committee, however, redrafted Article 166 of the Draft Constitution prepared by the Constitutional Adviser by splitting it into two articles i.e. Article 198 and 199. The redrafted Articles 198 and 199 of the Draft Constitution read as follows : 198. (1) When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the court as the President may appoint for the purpose. (2) (a) When the office of any other Judge of a High Court is vacant or when any such Judge is appointed to act temporarily as a Chief Justice or is unable to perform the duties of his office by reason of absence or otherwise, the President may appoint a person duly qualified for appointment as a Judge to act as a Judge of that Court. (b) The person appointed shall, while so actin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed Constitution. This prohibition, however, does not apply to acting Judges or temporary Judges. I think the rule in future should be that any barrister or advocate, who accepts a seat on the Bench, shall be prohibited from resuming practice anywhere on retirement. I would not, however, apply this to temporary Judges taken from the Services, who hold a seat on the Bench for a few months, but I would add that the practice of appointing additional and temporary Judges should be definitely given up. When I said at the Round Table Conference that there were acting, additional and temporary Judges in India, some of the English lawyers not accustomed to Indian law felt rather surprised. I am also of the opinion that temporary or acting Judges do greater harm than permanent Judges, when after their seat on the Bench for a short period they revert to the Bar. A seat on the Bench gives them a pre-eminence over their colleagues and embarrasses the subordinate Judges who were at one time under their control and thus instead of their helping justice they act as a hindrance to free justice. I have a very strong feeling in this matter and have during my long experience seen the evil effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not exceeding two years as he may specify. (2) When any Judge of a High Court other than the Chief is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties. (3) No person appointed as an Additional or acting Judge of a High Court shall hold office after attaining the age of sixty years. 1055. Article 217(1) was simultaneously amended in order to make the procedure of the appointment of permanent Judges applicable to Additional and acting Judges too. After amendment, Article 217(1) reads : 217. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an Additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty years. 1056. The ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals from the decisions of Election Tribunal.The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in the High Courts. Applications for the enforcement of fundamental rights, applications seeking to restrain the usurpation of jurisdiction by administrative bodies and application or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts. It has to be observed that many laws have come in for challenge in the Courts on the ground of their inconsistency with the Constitution. The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts. Their decisions have not only taken longer time, but have led not infrequently to references to Full Benches which necessarily divert the available judge-power from what may be called normal judicial work. As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very considerably. This increase of work and its specially dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of our recommendations made elsewhere will lead to a quicker disposal of work in the subordinate courts which, in its turn, will result in an increase in the work of the High Courts. 57. We are of the view that the provisions of Article 224 of the Constitution should be availed of and Additional Judges be appointed for the specific purpose of dealing with these arrears. The number of such Additional Judges required for each High Court for the purpose of dealing with the arrears will have to be fixed in consultation with the Chief Justice of India and the Chief Justice of the State High Court after taking into consideration the arrears in the particular Court, their nature and the average disposal of that Court. The number of Additional Judges to be fixed for this purpose should be such as to enable the arrears to be cleared within a period of two years. The Additional Judges so appointed should, in our view, be utilised as far as possible exclusively for the purpose of disposing of arrears and not be diverted to the disposal of current work. Pari passu with the disposal of the arrears, the permanent strength of the High Court will have to be brought up to and maintained at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1061A. Article 216 of the Constitution reads : 216. Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. 1062. It is well known that with the increase of the population and the number of laws and with the changes brought about in the economic, social and political life of the people, litigation in all courts has been continuously increasing. Naturally the number of cases filed in the High Courts which happen to be the highest courts in the case of a large number of matters have gone on growing. From the statements filed on behalf of the Central Government along with the affidavit dated August 29, 1981 of Shri T. N. Chaturvedi, Secretary (Justice), Government of India, the following facts emerge : As on As on As on Decem- Decem- Decem- ber 31, ber 31, ber 31, 1978 1979 1980 (a) The total number of main 6,13,799 6,17,239 6,78,951 cases pending (b) Average disposal of main 860 per Judge per year during the years 1978, 1979 and 1980 (c) The sanctioned strength of Sanctioned Actual permanent Judges in all the strength strength High Courts as on March 18, 1981 308 (d) The actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rears. In the present situation, it appears, there should be at least 600 permanent Judges to fight the problem of arrears. If in any given High Court arrears come down, then fresh appointments in that High Court may not be made. But steps have to be taken to appoint immediately at least 200 more Judges after making all the existing Additional Judges permanent. In this state of affairs, it is difficult to understand as to why Judges are being appointed even now as Additional Judges only for a period of two years or for lesser periods. When it is not disputed that a Judge appointed under Article 224(1) of the Constitution is not a Judge on probation, what is the advantage of appointing Additional Judges when there is need to appoint more permanent Judges ? Surely there is no financial gain to the Government as the expenditure involved is almost the same whether a Judge is an Additional Judge or a permanent Judge. On the other hand, the appointment of Additional Judges even where permanent Judges are needed leads to two important disadvantages. First, the periodic processing of the papers relating to the renewal of the term of an Additional Judge consumes a lot of time of the high fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were appointed as Judges. The sanctioned strength of permanent Judges, however, at no time represented the true position as it is found that always the permanent strength fell short of the requisite number. This is not a happy position at all but this is not all. Judges whose tenure is not assured as in the case of permanent Judges but whose continuance in office after the specified period is subject to the will of any other authority generally do not inspire confidence in the litigant public also. The decision of this Court in Krishan Gopal v. Prakashchandra supports this statement. That was a case where the appellant had questioned the jurisdiction of a retired Judge of the Madhya Pradesh High Court who had been requested to function as a Judge under Article 224-A of the Constitution to try an election petition. This Court negatived that contention of the appellant holding that a retired Judge functioning under Article 224-A had all the powers and jurisdiction of a sitting Judge. This Court also negatived another contention of the appellant which had been urged in support of the appeal. The appeal should have, therefore, been dismissed. The operative part of the judgment, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government to try criminal cases was found to be violative of Article 21 of the Constitution by Chandrachud, C.J. in In re The Special Courts Bill, 1978 case . In that connection, the learned Chief Justice observed at SCR pages 549-550 thus : (SCC p. 435, paras 95 96) The second infirmity from which the procedural part of the Bill suffers is that by Clause 7, Special Courts are to be presided over either by a sitting Judge of a High Court or by a person who has held office as Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India. The provision for the appointment of a sitting High Court Judge as a Judge of the Special Court is open to no exception. Insofar as the alternate source is concerned, we entertain the highest respect for retired Judges of High Courts and we are anxious that nothing said by us in our judgment should be construed as casting any aspersion on them as a class. Some of them have distinguished themselves as lawyers once again, some as members of administrative tribunals, and many of them are in demand in important walks of life. Unquestionably they occupy a position of honour and respect in societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entre, is entrusted to a judicial body, it is natural that such body should be assigned a status free from capricious or whimsical interference from outside and the Judges who constitute it should be granted a security of tenure that lifts them above the fear of acting against their conscience. 1069. Lord Chief Justice Sir Edward Coke is remembered with gratitude by all who cherish the independence of the judiciary as an inviolable part of a democratic Government. That when all the other Judges basely succumbed to the mandate of a sovereign who wished to introduce despotism under the forms of juridical procedure, Chief Justice Coke did his duty at the sacrifice of this office . The extract from 12 Coke 63 which is found at pages 271 and 272 of the The Lives of the Chief Justice of England by J. L. Campbell, Volume I 1894 shows the courage with which Coke, C.J. resisted the attempts of King James I to interfere with the judicial proceedings. Archbishop Bancroft suggested that in order to curb the independence of Lord Coke the King himself should commence to decide whatever cause he pleased in his own person. Accordingly the King summoned all the Judges before him and his Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice between the citizens and the State. He has to ensure that the administration conforms with the law, and to adjudicate upon the legality of the exercise by the Executive of its powers. The relations between the Judiciary and the Legislature are also exceptional and privileged. Parliament has deliberately maintained the judges in a special position, not only by charging their salaries to the Consolidated Fund so that they do not fall within the annual scrutiny of Parliament, but also by eschewing any claim to criticise a judge's conduct in his judicial capacity except on a specific Motion for an Address to the Crown for the judge's removal. That has worked, as far as one can see, without any adverse comment as long as any of us can remember.Parliament has a vital interest in the efficiency and the integrity of the Bench because Parliament and the Judiciary are interdependent and, from different angles, they exercise and enforce their control upon the Executive. Parliament decides what the law shall be and the judges decide what, in fact, Parliament has made it. The labours of Parliament in enacting the law depend for their effectiveness very largely on the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary, with high integrity and vast professional skill. I imagine that there can be no profession where professional skill based on long experience is more necessary than in the case of the Judiciary. (PARLIAMENTARY DEBATES - LORDS, (1953-54), Vol. 186, p. 1019) 1073. The foregoing shows the importance of the independence of the judiciary in our body-politic. 1074. The next point which requires to be examined is whether an Additional Judge who is appointed for a specified term and who is not reappointed after the expiry of the said term can complain before a court of law about his non-appointment. In other words whether such an Additional Judge has any judicial remedy at all if he is aggrieved by the Government not appointing him as Additional Judge for a further term or as a permanent Judge is the question which has to be considered here. Ordinarily wherever there is a right there should be a remedy, otherwise the right would be without meaning. On a fair construction of Article 224(1) of the Constitution which enables the President to appoint an Additional Judge for a period not exceeding two years and of Article 217(1) of the Constitution which limits the tenure of an Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 217 and Article 224 of the Constitution. It is argued that when once a Judge is appointed to the High Court under Article 224(1) of the Constitution as an Additional Judge by following the procedure of consultation prescribed in Article 217, he should either be appointed as a permanent Judge if a vacancy arises before the end of his tenure fixed pursuant to Article 224(1) which cannot exceed a period of two years or reappointed as an Additional Judge before the end of that period if the arrears of work in the Court to which he is appointed are such that there is a need to have an Additional Judge for a further period. It is urged that when the occasion to appoint such Additional Judge as a permanent Judge or as an Additional Judge, as the case may be, arises even though consultation with the functionaries specified in Article 217 of the Constitution should again be followed, the consultation on that occasion should be limited to the existence of a vacancy of a permanent Judge or the existence of arrears, as the case may be, and not to any other question which may be relevant at the time of the initial appointment. In other words, the argument is that the consultation or the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted during pleasure, the correspondence between the claimant and the Secretary of State constituted a contract enforceable against the Crown that the Crown would employ him until he attained the age of 62. It was held by Lord Goddard, C.J. that the provisions of the Act of Settlement relating to the tenure of office of Judges of the Supreme Court in England did not apply to the Straits Settlements or to any other colony; it was for the Crown by exercise of the prerogative or Parliament by statute to set up courts in an acquired territory, and the conditions under which Judges of those courts held office depended upon the terms on which the Crown or Parliament established them. Secondly that it was clear from a consideration of the Straits Settlement Act, 1866, Royal Letters Patent of 1911 which instructed the Governor that he might appoint Judges to hold office during His Majesty's pleasure, and the Royal Warrants relating to the courts in the Straits Settlements that Judges held office during the Royal pleasure; accordingly, the claimant having been appointed by Letters Patent issued pursuant to a Royal Warrant which following the terms of the Letters Patent of 1911, held of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. A convention is a rule of constitutional practice which is neither enacted by Parliament as a formal legislation nor enforced by courts, yet its violation is considered to be a serious breach of constitutional morality leading to grave political consequences to those who have indulged in such violations. They are, according to O. Hood Phillips, rules of political practice which are regarded as binding by those to whom they apply, but which. . . are not enforced by the courts or by the Houses of Parliament . Constitutional conventions, understandings or practices therefore constitute a source of constitutional law or binding rule of conduct though not enforced by courts. The true position may be summarised thus :The people as a whole, and Parliament itself, recognise that under the unwritten Constitution there are certain established principles which limit the scope of Parliament. It is true that the courts cannot enforce these principles as they can under the Federal system in the United Sates, but this does not mean that these principles are any the less binding and effective. - Prof. A. L. Goodhart 1078. The conventions are evolved over a long period of political experience ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrounding his case. This has presented some unusual difficulty in answering it. A rule of practice should, according to some legal philosophers who are principally concerned with what the law ought to be, be treated as binding if it is fair and operates in a fair society and if it involves mutual benefits to the participants, so that the party who receives or expects to receive benefits, must in his turn be willing to render benefits according to the practice, because such practice gives rise to expectations, which when violated would result in harm to one or the other. These philosophical reasons may appeal to the sense of morality but while interpreting the Constitution, it has to be seen whether there is any room for concluding that an enforceable right has come into existence as a consequence of such practice.1081. Prof. P. S. Atiyah, who has tried to analyse the nature of promissory obligations in the light of the theories of 'promising' associated with the natural lawyers, the utilitarians and a number of other legal philosophers in his book entitled Promises, Morals and Law 1981, Oxford, observes at pages 141-142 thus : Some philosophers have recognised that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and the rest were appointed initially as Additional Judges for a certain term and thereafter appointed as permanent Judges. Some of them were appointed as Additional Judges twice or thrice before they were made permanent. Only a few of them were not made permanent, either because they had attained the age of retirement or they had resigned or for some other reason. The number of persons who were not made permanent on the ground that they were found unfit when their cases for reappointment were considered appears to be almost insignificant as it may not be more than five. But at no time the action of the Government in not reappointing an Additional Judge as a permanent Judge was questioned before any Court as it is now done in these cases. 1085. What is to be noticed is that in almost every High Court a few posts have been kept as sanctioned posts of Additional Judges as if they were part of the total strength. The result has been that unless all the sanctioned posts of Additional Judges and at least one post of a permanent Judge have fallen vacant at a given point of time any new Judge appointed on that occasion being the juniormost has to be appointed as an Additional Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenure of the Additional Judge. Ordinarily the Additional Judge is continued in service as a Judge or as an Additional Judge unless there are any relevant circumstances which would outweigh the above-mentioned factors. In the absence of any such cogent reasons for not appointing him again, the appointment of somebody else in his place would be an unreasonable or perverse act which entitles an Additional Judge to move the Court for appropriate relief in the peculiar circumstances in which Article 224(1) is being operated till now.1087. At this stage an allied contention urged in this connection may be disposed of. That contention is that an Additional Judge cannot be dropped without giving him a reasonable opportunity of being heard in accordance with the principles of natural justice. We do not find any merit in this contention since the wide discretionary power of appointment exercisable by the President in the public interest under Article 217(1) is indicative of the absence of an obligation to act judicially [vide para 65, Vol. I of Halsbury's Laws of England (4th Edn.)]. It is seen from the language of that article that the Constitution has evinced an intention to exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf, but to make it pass muster with his criticism. Accordingly, he passes in review all of the rules, principles, legal categories, and concepts which he may find useful, directly or by an analogy, so as to select from them those which in his opinion will justify his desired result . (See Jerome Frank : LAW AND THE MODERN MIND, 1963, p. 112) 1089. The following observations of Denning, L.J. (as he then was) in Candler v. Crane Christmas Co. [1951] 2 K.B. 164, 178 : [1951] 1 All E.R. 426(CA)), though in the minority are also relevant here. He observed : . . . This argument about the novelty of the action does not appeal to me in the least. It has been put forward in all the great cases which have been milestones of progress in our law, and it has always, or nearly always, been rejected. If you read the great cases of Ashby v. White (1703 2 Ld Raym 938 : 1 ER 417), Pasley v. Freeman (1789 3 Term Rep 51 : 100 ER 450) and Donoghue v. Stevenson [1932] A.C. 562 : [1932] All E.R. 1 : (101) L.J. P.C. 119 : 147 LT 281 (HL)) you will find that in each of them the judges were divided in opinion. On the one side there were the timorous souls who were fearful of allowing a new cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Home Ministry that a convention should be established whereby a proportion of Judges in every High Court could be recruited from outside the Province stated that there was no bar to the recruitment of Judges of High Court in any Province from outside the Province or to the transfer of a Judge of a High Court to another High Court and a convention might be established whereby a proportion of Judges of a High Court could be recruited from outside the Province. (B. Shiva Rao : The Framing of India's Constitution, Vol. IV, p. 166) In view of the suggestions made in the course of the discussion on the Draft Constitution, the Drafting Committee incorporated in the Revised Draft, Article 222 which read as follows : 222. (1) The President may transfer a Judge from one High Court to any other High Court within the territory of India. (2) When a Judge is so transferred, he shall, during the period he serves as a Judge of the other Court, be entitled to receive in addition to his salary such compensatory allowances as may be determined by Parliament by law and until so determined, such compensatory allowance as the President may by order fix. 1093. In the letter dated Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Courts so far as the appointment of Judges is concerned form now a central subject, it was desirable to treat all the Judges of the High Courts throughout India as forming one single cadre like the I.C.S. and that they should be liable to be transferred from one High Court to another. If such power was not reserved to the Centre the administration of justice might become a very difficult matter. It might be necessary that one Judge may be transferred from one High Court to another in order to strengthen the High Court elsewhere by importing better talent which may not be locally available. Secondly, it might be desirable to import a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government.We also took into account the fact that this power of transfer of Judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular Judge from its High Court because that Judge had become very inconvenient to the Provincial Government by the particular attitude tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. 1097. This leads to the question whether under Article 222 of the Constitution, the consent of a Judge of a High Court is necessary to transfer him from one High Court to another High Court. The majority judgment of this Court in Union of India v. Sankalchand Himatlal Sheth holds that the consent of a Judge for his transfer from one High Court another High Court is not necessary. It is, however, contended before us that the said interpretation of Article 222 is erroneous as it would affect adversely the independence of the judiciary. It is significant that Article 222 does not state in express terms that the consent of the Judge concerned is a prerequisite for his transfer. In places where consent of a Judge is needed the Constitution has stated that such consent should be obtained from the Judge concerned (vide proviso to Article 128 and proviso to Article 224-A of the Constitution ). Under Article 127(1) of the Constitution if at any time there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 222 is construed as requiring the consent of a Judge to be transferred then the power of the President can be neutralised by the Judge withholding consent.Such a construction would virtually confer on an unwilling Judge an immunity against the exercise of the power by the President under Article 222 even though public interest demands the transfer of the Judges. Article 222 would in that case become almost ineffective. That being so, such a construction has to be avoided. 1098. One other reason which prompts me to say so is as follows : By way of comparison we may refer here to some of the provisions of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 16 Geo. 5. c. 49) of England which appears to have been used as a model for some of the relevant provisions of the Government of India Act, 1935 and of the Constitution. Section 3 of that Act corresponds to Article 224-A of the Constitution. Section 7 of that Act corresponds to Article 127 and Section 8 of that Act corresponds to Article 128. Section 4(1) of that Act provides for the establishment of three Divisions of the High Court and they are now called the Chancery Division, the King's Bench Division (now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for a transfer of a Judge under the Government of India Act, 1935 ? and (2) if, there was such a provision, whether the decision of the majority in Sankalchand Sheth requires to be reconsidered ?1102. It is true that Chandrachud, J. (as he then was) and Krishna Iyer, J. have both stated in the course of their opinions that there was no provision in the Government of India Act, 1935 providing for the transfer of a Judge from one High Court to another High Court and both the learned Judges proceeded on the assumption that under that Act the induction of a Judge of one High Court in another was possible only by a fresh appointment. Even Bhagwati and Untwalia, JJ. who constituted the minority in Sankalchand Sheth case proceeded on the same basis. Bhagwati, J. observed in that case at SCR page 473 : Neither in proviso (c) nor in any other provision of the Government of India Act, 1935 was the word 'transfer' used and there was also no specific provision in that Act conferring power to transfer a High Court Judge (SCC p. 246). Untwalia, J. observed in that case at SCR page 510 : Neither in proviso (c) nor in any other section of the Government of lndia Act was the word ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive. I might mention that there is a similar provision in Section 10 of the Supreme Court of Judicature Act, 1925 applicable to High Court Judges in this country. (See HANSARD (LORDS), Vol. 132, Col. 632 of July 4, 1944) 1105. Reliance is also placed on two other speeches made in the House of Commons on September 27, 1944 on the same Bill, the relevant parts of which are given below :The Secretary of State for India (Mr. Amery) stated : The second clause clears up a doubt which had been expressed as to whether under the provisions of the Act a Judge transferred in India from one High Court to another or to the Supreme Court (sic) might not be considered as still holding his position in his original Court. In our own Judicature Act, 1925, that point is made clear in Section 10. This Clause simply adopts the Indian condition to the wording of our own Judicature Act. (See HANSARD (COMMONS), Vol. 493, Col. 345 of September 27, 1944) Mr. Pethick Lawrence also observed : With respect to the Judges, I understand the proposal is merely intended to put beyond question what was certainly the intention in regard to them. That is, I understand the only part of the Bill which is retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so should not be considered, for they are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons . 1108. In Statutory Interpretation by Sir Rupert Cross (1976 Edn.), we have a very instructive passage explaining the relative importance of certain parts of a statute, including side-notes (or marginal notes). The learned Author is of the view that although the long title, preamble (if any) and short title of a statute may be described as aids to the ascertainment of the intention of Parliament, cross-headings, side-notes (or marginal notes) and punctuation merely indicate the intention of the draftsman. He proceeds to observe at pages 107-108, 113-114 thus :There is a bewildering mass of conflicting dicta on the question whether some of the above items can be treated as aids to construction at all and, when it is conceded that they may be so treated, upon their weight. This is due to a failure to distinguish between two stages in the process of interpretation at which the aids may be relevant. The first stage is that at which the judge has to decide whether he has any real doubt about the meaning of the word, phrase or passage which he is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation. The remarks were made with special reference to cross-headings :When the court construing the Act is reading it through to understand it, it must read the cross-headings as well as the body of the Act and that will always be a useful pointer to the intention of Parliament in enacting the immediately following sections. Whether the cross-heading is no more than a pointer or label, or is helpful in assisting to construe, or even in some cases to control, the meaning or ambit of those sections must necessarily depend on the circumstances of each case and I do not think it is possible to lay down any rules. The matter must now be considered in slightly greater detail. Side-notes Chandler v. Director of Public Prosecutions [1964] A.C. 763 : [1962] 3 All E.R. 142 : [1962] 3 W.L.R. 694 (HL)) may be cited as conclusive authority for the proposition that side-notes (frequently spoken of as marginal notes ) cannot be used as aids to construction in any circumstances. The defendants, members of the Committee of One Hundred, the aim of which was to further nuclear disarmament, participated in a demonstration at an airfield with the object of grounding all aircraft. They were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : [1969] 3 All E.R. 1640 : [1970] 2 W.L.R. 279 (HL)) : (All ER p. 1641) But it may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to everything found in the printed Act. I say more realistic because in very many cases the provision before the court was never even mentioned in debate in either House, and it may be that its wording was never closely scrutinised by any member of either House. In such a case it is not very meaningful to say that the words of the Act represent the intention of Parliament but the punctuation, cross-heading and side-notes do not.1109. In Bhinka v. Charan Singh , Subba Rao, J. (as he then was) observed thus : Maxwell on The Interpretation of Statutes, 10th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at page 50 : The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of proximity when they relied on Section 10 of the Supreme Court of Judicature (Consolidation) Act, 1925, which established the Supreme Court of Judicature in England consisting of His Majesty's High Court of Justice and His Majesty's Court of Appeal both of which were in the same building at the Royal Courts of Justice. Even there Section 10(2) of that Act provided that the office of any Judge of the High Court would be vacated by his being appointed as a Judge of the Court of Appeal and the same Act used 'transferred' in Section 4(2) thereof where it was dealing with the transfer of a Judge of the High Court from one Division to another Division. The marginal note and the speeches relied on are, therefore, of not much use. On this slender material we cannot hold that there was a provision for transfer of a High Court Judge under the Government of India Act, 1935. I am of the view that there is no error committed by the learned Judges in stating so in Sankalchand Sheth case (Union of India v. Sankalchand Himatlal Sheth, and the decision in that case is not liable to be reconsidered on the ground now urged before us.1113. It is alternatively urged that as the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. It is perfectly true that the ordinary and normal cannon of construction requires that when we find in a statute or in a constitution two different expressions used, as far as possible two different meanings must be given to these expressions, because it must be assumed that the Legislature or the Constituent Assembly did not use two different expressions without intending to convey two different meanings. But instances are not unknown where two different expressions have been used to convey the same meaning. . . 1116. In the aforesaid Bombay case the learned Judges were concerned with the apparent difference between two expressions 'law in force' and 'the existing law' of which the latter expression was more compendious than the former and could include within its scope both the former expression 'law in force' which meant law actually in force and any law potentially in operation such as law which had been suspended or which had not been extended to certain territories. The two expressions found place in Article 13 and Article 372 respectively of the Constitution. On a consideration of the relevant circumstances, the Bombay High Court came to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (See Constituent Assembly Debates, Vol. 11, p. 596) 1120. If the Constituent Assembly had thought that 'appointed' and 'transferred' were interchangeable, there would have been no need for the amendment as the provision in the Revised Draft Constitution was sufficient. But it deliberately amended the provision as stated above by distinguishing a 'transfer' from an 'appointment'. If in spite of this amendment, the Constituent Assembly has allowed paragraph 11(b)(iii) in the Second Schedule to the Constitution to remain as it is, it only means that it thought that the word 'transfer' had been used therein in a broad sense meaning a physical 'transfer' of the Judge concerned which included both appointment to the Supreme Court and transfer to another High Court and that is clear by the use of a common expression 'transfer' in respect of both the events which follow it in that clause. Moreover, this argument now pressed before us runs counter to Article 222 of the Constitution which appears to be a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to another High Court before he enters upon his duties there for the reason that he ceases to be Judge of a High Court to which he is originally appointed on being transferred and the oath taken earlier would come to an end on such transfer as the oath is with reference to the High Court concerned, (which is inserted in the blank space in the form of oath). It is argued that it is not possible for a person to function as a Judge unless the oath is operative. If a transferred Judge has therefore to take a fresh oath then it is urged that the order of transfer would become a fresh appointment for which his consent would be required by necessary implication as it is necessary in the case of a first appointment under Article 217(1). It is difficult to agree with this contention. What is the object of an oath ? An oath is taken by a Judge in order to show his allegience to the Constitution and to affirm that he will duly and faithfully discharge his duties as a Judge without fear or favour, affection or ill will and that he will uphold the Constitution. The essential part of it is what he swears or affirms to do. The words having been appointed Chief Justice (or a Judge) of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the form of oath taken by him. The position cannot be different when a Judge of a High Court is transferred under Article 222. On such transfer he may cease to be a Judge of the High Court where he was working before such transfer but he continues to be a Judge nonetheless and goes to the Court to which he is transferred as a Judge and not as a newly appointed person who is still to blossom into a Judge by taking the oath as prescribed by Article 219 of the Constitution.1123. Incidentally we may refer to the decision of the High Court of Allahabad in Hira Singh v. Jai Singh 1937 AIR(All) 588 (FB) : ILR 1937 All 880 : 1937 All(LJ) 659, 840 : 171 IC 153) in which the question of a Judge not taking oath had arisen for consideration in a slightly different situation. In that case a preliminary objection was taken to the constitution of the Bench before which the case came up for hearing as the Bench consisted of Justice Uma Shankar Bajpai, who had been originally appointed as an Additional Judge of that Court under the Government of India Act, 1915 and who after some extensions had been appointed as a permanent Judge on March 17, 1937 with effect from April 1, 1937. Part 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to which he was initially appointed. It is not correct to state that the effect of that oath comes to an end because he vacates his seat in the Court where he was functioning before his transfer. Since there is no necessity for a fresh oath after his transfer, even though as a matter of abundant caution the practice of taking fresh oath is prevailing nowadays, it cannot be said that he is appointed afresh as a Judge in the Court to which he is transferred. 1126. There is one other ground to hold that the transfer does not result in a fresh appointment. If it is a fresh appointment in a new High Court with his consent, payment of an additional compensation under Article 222(2) of the Constitution to the Judge who becomes a Judge of that High Court under an order of transfer under Article 222(1) would become anomalous as the other Judges of that Court who are initially appointed to that Court would be getting the usual salary, allowances and other perquisites allowable in the case of a High Court Judge. It is only when a Judge is transferred in the public interest without his volition it can be said that payment under Article 222(2) would not be discriminatory as then he wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure of punishment to an erring Judge. It may be that when a Judge is transferred in the public interest, he suffers some inconvenience but such inconvenience cannot be termed as a punishment. I am sure that the Chief Justice of India and the President will duly consider all aspects before ordering such a transfer.1130. The following observations of Chandrachud, J. (as he then was) in Sankalchand Himatlal Sheth case (Union of India v. Sankalchand Himatlal Sheth, fully explain the true legal position at SCR pages 444-445 thus : (SSC pp. 217-18, para 15) Unquestionably, the fundamental principle on which these constitutional provisions and decisions rest cannot be allowed to be violated or diluted, directly or indirectly. But then the question is : Is there any need or justification, in order to uphold and protect the independence of the judiciary, for construing Article 222(1) to mean that a Judge cannot be transferred from one High Court to another without his consent ? I think not. The power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and the President has no power to transfer a High Court Judge for reasons not bearing on public interest but arising out of whim, caprice, or fancy of the executive or its desire to bend a Judge to its own way of thinking . It is also clear from the above decision that the power to punish a High Court Judge, if one may so describe it, is to be found only in Article 218 read with Articles 124(4) and (5) of the Constitution, under which a Judge of a High Court can be removed from his office by an order of the President passed after an address by each House of Parliament, is presented in accordance with those clauses on the ground of proved misbehaviour or incapacity. The question debated before us is whether under Article 222, it is open to the President to transfer a Judge from one High Court to another High Court on the ground of 'misbehaviour or incapacity' and whether the said ground falls within the scope of 'public interest' which is the only relevant consideration on the basis of which a transfer can be made under that article. It is argued that even though the observations made in the majority judgment which are extracted above point out that no vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of references to the High Court for references to the Supreme Court. Clauses (4) and (5) of Article 124 read as follows : 124. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). 1135. Clause (5) of Article 124 authorises the Parliament by law to regulate the procedure for the presentation of an address and for investigation and proof of the misbehaviour or incapacity of a Judge under clause (4) thereof. In exercise of the said power Parliament has enacted the Judges (Inquiry) Act, 1968 (51 of 1968)which is applicable to Judges of both the Supreme Court and High Courts. The procedure prescribed by that Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e - if we may use this expression, is his reputation. People accept the decision of a Judge not because his decision is always correct but because it is rendered by a person known for his wisdom, integrity, character and impartiality. It is only on account of these qualities of a Judge, people have faith in the judiciary. The litigants naturally expect the presiding officer of a Court to be a virtuous person. If there is a slight rumour which would adversely affect his reputation, he ceases to command the respect of the people. Even a correct judgment given by a Judge who is transferred would be viewed with suspicion, if it is known that a Judge, whose character and conduct are not above reproach is liable to be transferred from one High Court to another High Court, even when his transfer is effected in the public interest and not on the ground of his character or conduct. Then, how can a Judge who is transferred command the respect of the Bar and the people in the State to which he is transferred when his moral personality stands destroyed by the very act of transfer unless the order of transfer carries a postscript that he is not being transferred on any ground of misbehaviour or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent in that way, the transfer would have to be set aside on the ground of excess of jurisdiction. When once it is declared that a transfer of a Judge cannot be made at all on the ground of allegations of misbehaviour or of incapacity and can only be made in the public interest, the reputation of a transferred Judge would remain unsullied and no evil consequences such as those indicated above would follow.1140. It should be stated here that the learned Attorney-General has fairly conceded that no transfer of a Judge under Article 222 is possible on any of the grounds which may form the basis of a charge in a Parliamentary proceeding under clauses (4) and (5) of Article 124 read with Article 218 of the Constitution. It is, therefore declared that a transfer based on any such ground being outside the scope of Article 222 is liable to be set aside. But a transfer made in the public interest in accordance with Article 222 but without the consent of the Judge who is transferred is unassailable. 1141. It was faintly suggested by one of the petitioners that Article 222 of the Constitution does not in terms apply to a Chief Justice of a High Court and hence the transfer of a Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the Chief Justice, the Chief Justice of the High Court. This clause makes it clear that the expression 'Judge' includes a 'Chief Justice' also. If a Chief Justice is not a Judge, there would be no separate age of retirement for him. Clauses (a), (b) and (c) of the proviso to Article 217(1) would also become inapplicable to a Chief Justice as the word 'Chief Justice' is not used in them. Similarly, Article 217(2) which prescribes qualifications of a Judge, Article 217(3) which provides the procedure for determination of the age of a Judge, Article 219 which requires a Judge to make and subscribe an oath, Article 220 which imposes restrictions on the right of persons who have held office as permanent Judges to practice in certain courts, Article 221 which prescribes and protects the salaries of Judges and Article 224-A which provides for appointment of retired Judges to sit and act as Judges of a High Court would become inapplicable to a Chief Justice. Article 225 which has preserved the powers of Judges of High Courts which they were exercising before the commencement of the Constitution becomes inapplicable to a Chief Justice. If the term 'Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse, it is said, will have the advantage of giving the Chief Justice of India a wide choice in recommending a person suitable for that office. It has also been pressed upon us that bringing a Chief Justice from outside the State will have a very healthy influence, in that, it will promote a sense of unity in the country and prevent the Chief Justice being swayed by local connections and local influences. It may be mentioned that Chief Justices from outside the State have been appointed in some of the States and these appointments have proved a success. Though the analogy may not be very pertinent, we may refer to the practice of appointing Governors who do not belong to the State, which has been in vogue since the advent of the Constitution. 27. On the other hand it has been urged with considerable force, that it would not be fair, that competent persons on the Bench of the State High Court should be shut out from the chance of occupying the office of the Chief Justice in their own States. It has also been pointed out that the proposed practice may prevent members of the Bar from accepting appointments as Judges, the opportunity of serving as Chief Justices in their own States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a Chief Justice of a High Court one may feel assured that there will be very little room for anything prejudicial to the community of High Court Judges happening by the implementation of the policy of appointing Chief Justices of the High Courts from outside the State. The advantage of having some Judges in every High Court from outside have been considered by some high- power bodies earlier. 1149. The States Reorganisation Commission presided over by Justice S. Fazl Ali, former Judge of the Supreme Court of India in its Report prepared in the year 1955 observed at Paragraph 861 thus : 861. Guided by the consideration that the principal organs of State should be so constituted as to inspire confidence and to help in arresting parochial trends, we would also recommend that at least one-third of the number of Judges in a High Court should consist of persons who are recruited from outside that State. In making appointments to a High Court Bench, professional standing and ability must obviously be the overriding consideration. But the suggestion we have made will extend the field of choice and will have the advantage of regulating the staffing of the higher judiciary as far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be expected to subscribe. Normally, therefore, a Chief Justice should not object to the allocation of a carefully selected man. There is in any case no virtue in making any Bench the monopoly of the local Bar irrespective of available merit there or not;(b) it may be thought that the authority and prestige of a High Court would be affected in case members of an outside Bar are appointed to it. This is an insubstantial objection, because a High Court must command respect for the quality of justice that it dispenses and not for its ability to promote members of its Bar to the Bench. Leaving this aside, the proposal in any case does not envisage that more than one- third of the number of Judges of a High Court will come from outside. This cannot seriously affect the prestige and authority of the High Courts and the Chief Justices. Besides, any fancied diminution in the position of the Chief Justice on account of this one-third component from outside will be offset by the fact that candidates from his State may be going to other High Courts through a selection procedure in which he is associated. (Vide Report of the Study Team on Centre-State Relations, Vol. I, pp. 188-190) 1152. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent nepotism and the forming of cliques . (Immanuel C. Y. Hsu : THE RISE OF MODERN China, 2nd Edn., p. 62) 1157. One of the arguments in favour of appointing one-third of the Judges in every High Court from outside the State is that such a step would assist in bringing about national integration. It is my view that there is a good deal of substance in this argument although some dismiss the idea very lightly. Clauses (a) to (e) of Article 51-A of the Constitution need to be quoted here :51-A. It shall be the duty of every citizen of India - (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities;. . . 1158. Article 51-A of the Constitution which lays down the fundamental duties of the citizens of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egration is not a matter of public interest, what else can be in the public interest ?1159. It is difficult to believe that Judges who day in and day out are applying decisions of English, American and Australian courts while administering justice will not be able to pick up the local laws in force in the State in which the High Court to which they are transferred is situated. Are not the Judges of the Supreme Court who come from different States deciding cases from all the States in which very often they have to construe one local law or the other ? The argument that the efficiency of Judges will suffer if they are transferred is merely an argument of despair which has got to be rejected. 1160. The plea that a Judge of a High Court should always know the language of the region is again unsustainable. The Constitution-makers knew that in India there were a number of regional languages. Yet they enacted Article 222 of the Constitution without any limitation. A Judge of one High Court who does not know the regional language of another State may be transferred to the High Court of that State. It is well known that many Britishers who did not know any Indian language discharged thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.1161. Judges of one High Court trained in English language should not, therefore, find any difficulty in carrying on their duties in other High Courts which are situated in other States. All the high-power bodies which have expressed their opinion in favour of transfers of Judges have felt that the advantages flowing from the transfers of High Court Judges would outweigh the disadvantages, if any, including those flowing from the various regional languages of India. It is not possible to hold that the transfers of Judges would be opposed to the public interest on this ground also. 1162. It is pertinent to deal with a statement made in Sankalchand Himatlal Sheth case (Union of India v. Sankalchand Himatlal Sheth, at SCR page 454 which reads as follows : (SCC p. 227, para 38) Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. (Per Chandrachud, J.) 1163. On the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments whose discovery was sought being those containing communications made by high constitutional functionaries regarding a high level appointment it would not be proper to compel the Union Government to produce them. 1166. The question which relates to the circumstances in which the Government can claim that the documents, the production of which is demanded before a court of law, should not be compelled to be produced on the ground of privilege is of great constitutional importance. In Duncan v. Cammell Laird Co., Ltd. [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJKB 406 : 166 LT 366 (HL)) decided during the Second World War by the House of Lords such a question arose for consideration. On June 1, 1939, the submarine, Thetis, which had been built by the respondents in that case under contract with the Admiralty was undergoing her submergence tests in Liverpool Bay, and while engaged in the operation of a trial dive sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface with the result that all who were in her, except four survivors were overwhelmed. Ninety-nine men lost their lives. A large number of actions were inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment did not wish the documents to be produced was not an adequate justification for objecting to their production. Production could also be withheld when the public interest would otherwise be damnified as where disclosure would be injurious to national defence or to good diplomatic relations or where the practice of keeping a class of documents secret was necessary for the proper functioning of the public service. In such a case, it was held that the court should not require to see the document for the purpose of ascertaining whether disclosure would be injurious to the public interest. It was further held that it was essential that the decision to object should be taken by the minister who was the political head of the department concerned and that he should have seen and considered the contents of the documents and himself formed the view that on grounds of public interest they ought not to be produced and such objection should ordinarily be taken in an affidavit of the minister. This decision, it may be seen, laid down that privilege could be claimed in respect of a document on two alternative grounds viz. (a) that the disclosure of the contents of the documents would be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. 'Crown privilege' is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him, but the rule that the interest of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and, indeed, is a rule on which the judge should, if necessary, insist, even though no objection is taken at all.1167. Nearly five years after the judgment in Duncan case [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJKB 406 : 166 LT 366 (HL)) the Crown Proceedings Act, 1947 was passed by the British Parliament and the Crown privilege recognised under the common law was regulated by Section 28 of the said Act. But that section was, however, subject to the proviso that it could not override any rule of law which authorised or required the withholding of any document or the refusal to answer any question on the ground that the disclosure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong as the objection was taken in proper form, the Judge must treat the claim of privilege as conclusive, in Re Grosvenor Hotel case (See Merricks v. Nott-Bower, [1964] 1 All E.R. 717 : [1964] 2 W.L.R. 702 : 1965 1 QB 57 (CA); Re Grosvenor Hotel, London (No. 2), [1964] 3 All E.R. 354 : [1964] 3 W.L.R. 992 (CA) and Wednesbury Corporation v. Ministry of Housing and Local Governement, [1965] 1 All E.R. 186 : [1965] 1 W.L.R. 261 (CA)) Lord Denning, M.R. after referring to the practice prevailing in Scotland and Commonwealth countries, observed at pages 361-362 thus : In view of these developments, I think that it is open to the House, and I believe to us, to reconsider the matter : and I must say that, in my judgment, the law of England should be brought into line in this matter with that of Scotland and of the rest of the Commonwealth. The objection of a Minister, even though taken in proper form, should not be conclusive. If the court should be of opinion that the objection is not taken in good faith, or that there are no reasonable grounds for thinking that the production of the documents would be injurious to the public interest, the court can override the objection and order pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1942] 1 All E.R. 587: 111 LJKB 406 : 166 LT 366 (HL)). In the course of that statement after referring to the two grounds on which privilege could be claimed according to Duncan [1942] A.C. 624 : [1942] 1 All E.R. 587: 111 LJKB 406 : 166 LT 366 (HL)). In the course of that viz. (a) that the disclosure of the particular document would injure public interest e.g. by endangering public security or prejudicing diplomatic relations and (b) that the document fell within a class which the public interest required to be withheld from production, Lord Kilmuir stated thus :The claiming of Crown privilege on the first ground that I have mentioned has always been acceptable to the courts and public opinion. Where, however, the claim has been made on the ground that the document belongs to a class, especially, in proceedings where the Crown's position seems very like that of an ordinary litigant, it has been criticised on the ground that the administration of justice is itself a matter of public interest and should be weighed against the other head of public interest, that is, the proper functioning of the public service . The reason why the law sanctions the claiming of Crown privile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se categories of documents which appear to be particularly relevant to litigation and for which the highest degree of confidentiality is not required in the public interest. (Idid., pp. 467-468) 1173. The three decisions of the Court of Appeal referred to above which had been decided by Lord Denning M.R., Harman and Salmon, L.JJ. came up for consideration again before the Court of Appeal in Conway v. Rimmer [1967] 2 All E.R. 1260 (CA)) consisting of Lord Denning, M.R., Davies and Russell, L. JJ. The relevant facts of this case were these. The plaintiff, a probationer police constable was prosecuted by a Superintendent in the constabulary on a charge of stealing an electric torch belonging to another probationer constable. The prosecution failed and the plaintiff was acquitted but soon afterwards he was dismissed from the police force as unlikely to become an efficient police officer. The plaintiff sued the Superintendent for malicious prosecution. On discovery in the action, the Homes Secretary claimed Crown privilege for a class of documents which included the probationary reports relating to the plaintiff and the report leading to his prosecution; the privilege was claimed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion arises. Third, all those decisions proceeded on the basis that there was a difference or dichotomy, as Harman, L.J., called it in Re Grosvenor Hotel, London (No. 2) (Supra Note 330, pp. 364, 365) between contents cases and class cases; though it would appear that Salmon, L.J., would make a sub-division between high 'class' cases and low class cases. (Idid., pp. 370, 371) I am bound to say that I can see no logical distinction, though there obviously may be a practical one, between high class cases and low class cases, any more than there is between class cases and contents cases. Fourth, all of the judgments proceeded on the basis that the observations of Viscount Simon in Duncan case (Duncan v. Cammel Laird Co., Ltd., [1942] A.C. 624 : [1942] 1 All E.R. 587 : 166 LT 366 (HL)), as to class cases were obiter and wrong. Fifth, very little weight was attached in any of those cases to the decision in Auten v. Rayner [1958] 3 All E.R. 566 : [1958] 1 W.L.R. 1300 (CA)). Finally, all the Judges were exercised in their minds as to the desirability of the law of England in this respect being the same as that of Scotland and of Commonwealth countries, such as Australia, Canada a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that they may have to be produced if the interests of the due administration of justice should ever require production at any time. Lord Morris observed at page 891 : In many decided cases, however, there have been references to a suggestion that if there were knowledge that certain documents (e.g., reports) might in some circumstances be seen by eyes for which they were never intended the result would be that in the making of similar documents in the future candour would be lacking. Here is a suggestion of doubtful validity. Would the knowledge that there was a remote chance of possible enforced production really affect candour ? If there was knowledge that it was conceivably possible that some person might himself see a report which was written about him, it might well be that candour on the part of the writer of the report would be encouraged rather than frustrated. The law is ample in its protection of those who are honest in recording opinions which they are under a duty to express. Whatever may be the strength or the weakness of the suggestion to which I have referred it seems to me that a court is as well and probably better qualified than any other body to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding and any other circumstances appearing to the Board to be relevant before issuing licences under the Gaming Act, 1968. Applications made by a company of which the appellant was a director had been refused by the Board. It was the custom of the Board to obtain confidential information about applicants from the police. The appellant said that there came into his possession from an anonymous source a copy of a letter written about him to the Board by Mr. Ross, Assistant Chief Constable of Sussex. Obviously this letter had been abstracted by improper means from the files of the Board or of the police. The appellant said that this letter contained highly damaging libellous statements about him and that he wished to take proceedings to clear his reputation. The means he chose for doing that was to seek to prosecute Mr. Ross for criminal libel. To succeed he had to prove the letter. So he applied for its production. The Attorney-General opposed the summons and he succeeded. The House of Lords in appeal in the above case upheld the privilege. Lord Reid observed in the course of his speech at pages 400-401 thus : (All ER p. 1060) The ground put forward has been said to be Crown privile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts is really necessary to enable the Board adequately to perform its statutory duties. If it is, then we are enabling the will of Parliament to be carried out. 1178. In a later case before the House of Lords i.e. Burmah Oil Co. Ltd. v. Bank of England [1980] A.C. 1090 (HL)), it was again laid down that there was no rule of law that a claim by the Crown on the grounds of public interest for immunity from production of a class of documents of a high level of public importance was conclusive and that the Court had the power to inspect the documents before deciding whether they should be disclosed after balancing the competing interests of preventing harm to the State or the public service by disclosure and preventing frustration of the administration of justice by withholding disclosure.1179. In the last decision of the House of Lords to which our attention is drawn i.e. Science Research Council v. Nasse [1980] A.C. 1028 : [1979] 3 All E.R. 673(HL)) the question as to how far confidentiality could be a ground for claiming privilege in respect of any document arose for consideration. That case arose out of disputes between two employees and their employers which were raised before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public interest represented by the State and its public service, i.e. the Executive Government, and the public interest in the administration of justice : see per Lord Reid. Thus my emphasis would be different from that of my noble and learned friends. 'Public interest immunity' is, in my judgment, restricted to what must be kept secret for the protection of government at the highest levels and in the truly sensitive areas of executive responsibility. 1180. In England, according to Prof. S. A. De Smith (S.A. De Smith : JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 3rd Edn., p. 38) : As matters now stand a Government department can seldom expect to succeed in a claim based solely on prospective detriment to that facet of the public interest which requires candid expressions of opinion within the public service. In any event the court will prefer to rest a decision to exclude evidence on a more general ground than 'Crown privilege' - e.g. that it is contrary to the public interest to require the disclosure in legal proceedings of information obtained in confidence for a limited purpose. Courts are likely to accept without question a minister's certificate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of the class and the reasons why they should not be disclosed. For this purpose the proper test to be applied is whether the withholding of a document because it belongs to a particular class is really necessary for the proper functioning of the public service, and the term 'public service' in this context should not be construed narrowly. In considering a claim to Crown privilege in relation to a class of documents, the fact that the documents were communicated in confidence to the Crown is a very material consideration, but nevertheless the court may conclude that the public interest in such confidentiality is outweighed by the public interest that they should be disclosed in the administration of justice.1182. In Australia too the very same position prevails. It is sufficient to refer to the observations of Gibbs, A.C.J. of the High Court of Australia in Sankey v. Whitlam (1978 21 Aust LR 505 : 53 ALJR 11) decided in November, 1978 at page 542 which are as follows : What are now equally well established are the respective roles of the court and of those usually the Crown, who assert Crown privilege. A claim to Crown privilege has no automatic operation; it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with which the tradition of the common law has invested them and to hold them subject to any opinion formed, rational or irrational, by a member of the Executive to the prejudice, it might be, of the lives of private individuals, is not in harmony with the basic conceptions of our polity. But I should add that the consequences of the exclusion of a document for reasons of public interest as it may affect the interest of an accused person are not in question here and no implication is intended as to what they may be. What is secured by attributing to the courts this preliminary determination of possible prejudice is protection against Executive encroachments upon the administration of justice; and in the present trend of government little can be more essential to the maintenance of individual security. In this important matter, to relegate the courts to such a subserviency as is suggested would be to withdraw from them the confidence of independence and judicial appraisal that so far appear to have served well the organization of which we are the heirs. These are considerations which appear to me to follow from the reasoning of the Judicial Committee in Robinson v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. . . . I can readily conceive that the President might receive a letter which would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought, in such a case, be very strong, and to be fully shown to the court before its production could be insisted on. 1186. According to Wigmore the scope of the privilege in America, beyond secrets in the military or international sense is by no means clearly defined. Paragraph 2379 in Volume VIII of Wigmore on Evidence reads : Same : who determines the Necessity for Secrecy. So far as the privilege has legitimate scope, it raises the question how the existence of the facts which make it applicable is to be determined. If it extends only (as its just limits prescribe) to matters involving international negotiations or military precautions against a foreign enemy, the presence of such matters in the documents or communications sought to be disclosed must by some authority be pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re confidential (ante 2378, note 7) should be liberally construed to have an implied exception for disclosure when needed in court of justice. (3) The procedure in such cases should be : A letter of request (like a letter rogatory, ante, 2195) from the head of the Court to the head of the Department (accompanying the subpoena to the actual custodian), stating the circumstances of the litigation creating the need for the document; followed (in case of refusal) by a reply from the departmental head stating the circumstances deemed to justify the refusal; and then a ruling by the court, this ruling to be appealable and determinative of the privilege. 1187. Writing about the immunity claimed by President Nixon against the demand for disclosure of certain types of documents, Raoul Berger writes in his book entitled Executive Privilege : A Constitutional Myth 1974 at page 264 thus :'Candid interchange' is yet another pretext for doubtful secrecy. It will not explain Mr. Nixon's claim of blanket immunity for members of his White House staff on the basis of mere membership without more; it will not justify Kleindienst's assertion of immunity from congressional inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room in each department for an hour every morning for reporters to examine. If any reporter wanted further information on a case, he simply walked down the hall to look at the department's files. No special permission was needed. Such a system of open access is so alien to the tradition of secrecy elsewhere as to be almost unbelievable.... Sweden's long experience with the principle of openness indicates that it changes the whole spirit in which public business is conducted. It causes a decline in public suspicion and distrust of officials, and this in turn gives them a greater feeling of confidence. More important, it provides a much more solid foundation for public debate, and gives citizens in a democracy a much firmer control over their government. (Vide Indian Journal of Public Administration, Vol. XXV, No. 4, October-December, 1979 at pp. 990-991) 1190. The position in Sweden appears to represent an extreme case of openness of administrative process.1191. Max Weber (1864-1920) who was very critical of the rule of official secrecy observed : Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the standpoint of the rulers, no less than of the ruled, it will be most unfortunate if Indian papers were thus debarred from writing about matters which agitate the Indian community most. What happened, for instance, last year when those circulars were published ? For some time before their publication, the air was thick with rumour that Government had issued orders to shut out Indians from all posts in the Railways Department, carrying a salary of ₹ 30 and upwards a month. It was impossible to believe a statement of this kind, but it was not possible to contradict it effectively when it was practically on every tongue. The damage done to the prestige of the Government was considerable and it was only when the circulars were published that the exact position came to be understood. The circulars, as they stood, were bad enough in all conscience but they were not so bad as the public had believed them to be. What was laid down in them was not that Indians were to be shut out from all appointments higher than ₹ 30 a month but that Eurasians and Europeans were to have, so far as practicable, a preference in making appointments to such posts. The fear that such lamentabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rective to it, also raising, in the process, the quality of decision making. Besides, openness has an educational role inasmuch as citizens are enabled to acquire a fuller view of the pros and cons of matters of major importance, which naturally helps in building informed public opinion, no less than goodwill for the Government.1194. It may be necessary to deal with the question of official secrecy in grater detail in a case where the constitutionality of the claim for official secrecy, independently of the power of the Court to order discovery of official documents in judicial proceedings, arises for consideration. We are concerned in this case with the power of the Court to direct the disclosure of official documents in judicial proceedings. 1195. We shall now turn to the Indian law. In the State of Punjab v. Sodhi Sukhdev Singh a Constitution Bench of this Court had occasion to examine the limits of the privilege of the Government in the light of Sections 123 and 162 of the Indian Evidence Act, 1872. Section 123 reads : 123. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r opinion, it is quite conceivable that even in regard to a document falling within the class of documents relating to affairs of State the head of the department may legitimately take the view that its disclosure would not cause injury to public interest. Take for instance the case of a document which came into existence quite some time before its production is called for in litigation; it is not unlikely that the head of the department may feel that though the character of the document may theoretically justify his refusing to permit its production, at the time when its production is claimed no public injury is likely to be caused. It is also possible that the head of the department may feel that the injury to public interest which the disclosure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the direct injury to the cause of justice which may result from its non-production he may decide to permit its production. In exercising his discretion under Section 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n arose again before this Court in State of U.P. v. Raj Narain . Ray, C.J. speaking for himself and Alagiriswamy, Sarkaria and Untwalia, JJ. observed at SCR pages 348-349 thus : (SCC pp. 442-43, paras 41-42)The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion form disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are other elements. One such element is the administration of justice. The claim of the Executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the Executive alone knows what is best for the citizen. The claim of the Executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow department angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates. The power reserved to the court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of government for which the minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the Government to submit the documents in respect of which privilege was claimed for its inspection. Those documents included the correspondence between the Chief Justice of the High Court of Delhi, the Chief Justice of India and the Minister of Law and Justice and some official notings relating to the question of reappointment of Shri S. N. Kumar as a Judge of the High Court of Delhi.1200. The above order was made as the documents in question had no concern with either the security of the State or with the diplomatic relations between our country and any foreign country. They no doubt related to a 'high level' appointment, but it was felt by us that the fact by itself was not sufficient in circumstances of the case to prevent the Court from directing the Government to produce the documents for its inspection before deciding the question of discovery. 1201. The question whether these documents should be allowed to be disclosed as prayed for by the parties concerned, depended upon our view on the question whether such disclosure would subserve the public interest. It is accepted on all hands that the documents in question were 'high level' documents relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any collateral object.... If necessary an undertaking to that effect will be made a condition of granting an order : Since that time such an undertaking has always been implied, as Jenkins, J. said in Alterskye v. Scott [1948] 1 All E.R. 469, 471 (CH D)). A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose. The modern authorities are well discussed by Talbot, J. in Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. (1975 QB 613, 621 : [1975] 1 All E.R. 41 : [1974] 3 W.L.R. 782 (QBD)), and I would accept all he says, particularly as to the weighing of the public interests involved : see page 625. 1202. Ours is an open society which has a government of the people, which has to be run according to the Constitution and the laws. The expression 'affairs of State' should, therefore, receive a very narrow meaning. Any claim for interpreting it with a wider connotation may expose Section 123 of the Evidence Act to be challenged as being unconstitutional. 1203. In this case the questions involved are (1) whether there was divergence of opinion between the opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carefully considering all aspects of the case including the weighty reasons of our learned brother Fazal Ali, J. to the contrary.PART IX 1204. The next important and delicate question for consideration is whether the non-appointment of Shri S. N. Kumar as an Additional Judge even though the arrears of work in the High Court of Delhi justified the appointment of more number of Judges is legal and proper ? Article 217(1) of the Constitution which empowers the President to appoint Judge of High Courts does not make any distinction between the tests that should be applied in the case of appointment of a permanent Judge and the tests to be applied in the case of the appointment of an Additional Judge, as to the fitness of the person to be appointed. The same tests have to be applied even when a person who has already been appointed as an Additional Judge is to be considered for appointment as a permanent Judge or for appointment as an Additional Judge for another period although as already mentioned an Additional Judge has two factors in his favour which have to be taken into consideration by the appointing authority in the context of the manner in which Article 224 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court including the petitioner have not been reappointed as Additional Judges. If the policy was not to appoint such Judges, as a matter of policy, in the case of others also a similar decision would have been taken. But that has not bene the case. As can be seen from the List of Judges of the High Courts as on January 1, 1980, there were 12 Additional Judges in the Delhi High Court. Of them one died in 1980 and nine (including Mr. Justice Wad) had been either made permanent or continued as Additional Judges by the present Government. Only two i.e. Shri S. N. Kumar and Shri O. N. Vohra have not been continued. Hence it is difficult to draw an inference that it is on account of any political ground that Shri S. N. Kumar has not been continued. This argument that the Prime Minister took a hostile attitude towards Shri S. N. Kumar on account of political ground is inconsistent with another argument urged before us, namely, that the Law Minister had tried to mislead the Prime Minister when he wrote on March 3, 1981 that the letter of the Chief Justice of Delhi High Court makes a serious complaint against the integrity of Shri S. N. Kumar and I deliberately avoid going into the merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Chief Justice of the Delhi High Court had anything to gain by colluding with the Law Minister. He had been appointed as the Chief Justice of Delhi High Court before February 19, 1981 on which date he wrote the first letter expressing his opinion against the reappointment of Shri S. N. Kumar. Further the Chief Justice of the Delhi High Court is not impleaded as a respondent in the case. It is wholly improper and opposed to all canons of judicial process to make any comment against him without giving him an opportunity to defend himself. Under the Constitution, he is under a duty to express his opinion on the question of appointment of a Judge in the High Court of Delhi. Such opinion should be about all relevant aspects including the reputation and integrity of the person concerned. In discharge of his constitutional obligation, the Chief Justice of the Delhi High Court wrote to the Law Minister on February 19, 1981 as follows :Secret Confidential Chief Justice High Court of Delhi D.O. No. 275-HCJ/PPS New Delhi, February 19, 1981 My dear Shiv Shankarji, Mr. Justice S. N. Kumar was appointed an Additional Judge of this Court for a period of two years vide notification No. 50/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... significant that even the Chief Justice of India has not given the names of Judges and of lawyers who were consulted by him as stated in his letter dated May 22, 1981. There is no reason to disbelieve the statement of the Chief Justice of the Delhi High Court that he had heard some statements which suggested that the integrity of Shri S. N. Kumar was in doubt. The said statement may be in fact not true. We cannot go into the correctness or otherwise of those statements in proceedings of this character. It is enough to state that it is not shown that the Chief Justice of the Delhi High Court had not heard such statements at all. In this situation if the Chief Justice of the Delhi High Court had conveyed whatever he had heard and had not recommended continuance of Shri S. N. Kumar, he cannot be considered as having committed any act of impropriety even though Shri Kumar had not in fact done anything which was improper as a Judge. If Shri Kumar is a victim of false rumour he deserves sympathy but it is not open to condemn the action of the Chief Justice of the Delhi High Court which he had to discharge in the public interest and true to his oath of office.1209. The next aspect of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inister wrote on March 19, 1981 to the Chief Justice of the Delhi High Court bringing to his notice the note of the Chief Justice of India made on March 3, 1981 that the letter of the Delhi Chief Justice dated February 19, 1981 seemed to him too vague to accept that Shri Kumar lacked integrity and added : 2. In the light of these observations of the Chief Justice of India, I shall be grateful for your further comments on the question of continuance or otherwise of Shri Justice S. N. Kumar. His term expires on June 6, 1981 and I would be grateful if your comments reach me by April 15, 1981. 1211. It is seen from the letter dated March 28, 1981 written by the Delhi Chief Justice to the Chief Justice of India that the Chief Justice of India had also written a letter dated March 14, 1981 (which is not placed before us) to the Delhi Chief Justice about the same subject and that the Chief Justice of the Delhi High Court had met the Chief Justice of India on March 26, 1981 (this date is mentioned in the letter of the Chief Justice of India dated May 22, 1981 which will be referred to later on). After that meeting the Chief Justice of the Delhi High Court wrote to the Chief Justice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had an opportunity to discuss the entire matter in detail with the Chief Justice of India. After the discussion I have addressed a letter to the Chief Justice, a copy of which is enclosed. Perhaps you will consider this to be sufficient 'comments' on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter.With regards, Yours sincerely, Sd/- (Prakash Narain) Encl : 1 Shri P. Shiv Shankar, Minister of Law, Justice Company Affairs, Government of India, Shastri Bhavan, New Delhi. 1213. On April 15, 1981, the Law Minister wrote to the Chief Justice of the Delhi High Court asking for any material which provided the basis for his recommendation. It reads : Confidential D.O. No. 50/2/81-Jus. April 15, 1981 My dear Chief Justice, I am to hand your D.O. letter No. 293-HCJ/PPS dated March 28, 1981 and a copy of your letter to the Chief Justice of India bearing the same date, regarding Shri Justice S. N. Kumar, Additional Judge, Delhi High Court. The Chief Justice of India had felt that the reasons given in your earlier letter were vague and wanted more concrete particulars. It is true t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as forwarded to you. Accordingly, it is not only embarrassing but painful for me to write this letter. As you, however, desire to know what material provided the basis for me to conclude that Justice Kumar's integrity was not above- board, I give below some facts : In the first half of 1980, Justice Kumar was sitting singly and was doing mostly original side matters but also some appellate side matters. Chance remarks came to my knowledge about his conduct in Court as well as about his integrity. Somewhere early in May, 1980, one of my colleagues met me and said that he was rather perturbed about information with him to the effect that if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an insurance company would be decided in favour of that party. I had not paid much attention to the earlier reports but when this was brought to my notice, and I was at that time not the Chief Justice, I thought to myself that after the summer vacations, to save Justice Kumar from any embarrassment, he should be put on a jurisdiction other than original jurisdiction. Therefore, when as Acting Chief Justice I constituted the Benches for the second hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant files besides showing the complaint to Justice Kumar. My colleague had, of course, no comments to make nor could I ask him for the same. The litigation referred to in Mr. Sabir Hussain's complaint ended by the suit being decided in his favour as is apparent from the judgment and decree in Suit No. 550 of 1975. The learned Judge did not, however, give his decision on all the prayers or with regard to all the parties to the suit. From the record I could not find any evidence of alleged partiality. It is correct that the learned Judge took over six months in pronouncing judgment after the case was closed. I would not like to comment further on the merits of the decision because that is a judicial matter. But it is correct that the judgment does not deal with all the matters raised in the suit or regarding which evidence was adduced. It is also correct that all the evidence adduced has not been discussed in the judgment. The inferences made by Mr. Sabir Hussain from such a judgment are possible but it is a matter which should only be commented upon judicially. With regard to the disposal statement for the second half of 1980, I may mention that no special type of wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er besides seven miscellaneous petitions. In my original letter to you I had mentioned about other complaints regarding Justice Kumar besides the complaints about integrity. These pertain to his conduct with counsel in Court. Generally speaking an incident in Court is nothing more than exchange of, at the worst, hot words. Unfortunately incidents in Justice Kumar's Court have been occurring more frequently than in others. In some cases I am told, and in one I have verified, a senior counsel had to go to the extent of recording the incident and making his comments about unfair conduct of the Judge on affidavit which was placed on the record of the case. It created an unhappy situation.In view of what I have written above and my talks with you, it is now for the Government to see whether it would like Justice Kumar to continue as a Judge of the Delhi High Court. As far as I am concerned, my views have already been expressed in my letter dated February 19, 1981. With regards, Yours sincerely, Sd/- (Prakash Narain) Encl : 3 Shri P. Shiv Shankar, Minister of Law, Justice Co. Affairs, Government of India, New Delhi. 1215. Three statements are enclosed with this letter s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il his relations with the CJI on the one hand and on the other could not desist from expressing without fear or favour what he felt of certain matters and if he is going to be suspect for discharging his functions fairly and conscientiously, then his functioning as the Chief Justice would never be smooth vis-a-vis CJI. In view of the above, Secretary (J) may examine immediately as to whether it is inevitable to furnish the letters of the Chief Justice of Delhi to the CJI for his comments or would it be sufficient if on the basis of his previous endorsements, we address a letter to the CJI for his advice, making him available, if need be the material available with us including the purport of the I.B. report. In the latter case drafts may be put up. Sd/- Secretary (Justice) (P. Shiv Shankar) May 19, 19811216. Thereafter on May 21, 1981, the Law Minister wrote to the Chief Justice of India requesting him to give his opinion on the continuance of Shri S. N. Kumar. It has to be mentioned here that by then an interim order had been passed by this Court asking the Union Government to take a decision on the continuance of Shri S. N. Kumar ten days before the expiry of his tenure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f you were pleased to make any inquires, I shall be grateful to have the details. 6. I would be grateful for your urgent advice in regard to the continuance or otherwise of the terms of Justice S. N. Kumar and Justice S. B. Wad. With regards, Yours Sd/- (P. Shiv Shankar) Shri Y. V. Chandrachud, Chief Justice of India, Supreme Court, New Delhi. Encls : As above. 1217. The Chief Justice of India was camping at Simla then. The Government of India had to take a decision as per the interim order of this Court on or before May 27, 1981. In view of the urgency involved, the Chief Justice of India sent his reply as per letter of May 22, 1981 through a special messenger from Simla to the Law Minister which reads as follows :Chief Justice of India Supreme Court of India New Delhi Confidential Camp : Simla By Special Messenger May 22, 1981 My dear Shiv Shankar, I am in receipt of your letter (D.O. No. 50/2/81-Jus.) dated May 21, 1981 seeking my advice in regard to the continuance or otherwise of the terms of justice S. N. Kumar and Justice S. B. Wad who are at present functioning as Additional Judges of the Delhi High Court and whose terms were extended by a period of three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the Bar but from the sitting Judges of the Delhi High Court which show that it is a common practice in the Delhi High Court that even after the allocation of a Judge is changed from the original side to the appellate side and vice versa, he continues to take up part-heard cases on which a substantial amount of time has been already spent. Justice Kumar therefore did nothing out of the way or unusual in taking up part- heard cases after the allocation of his work was changed. I find it therefore difficult to agree that Justice Kumar's term should not to be extended for the reasons mentioned by the Chief Justice of the Delhi High Court. I disagree with the learned Chief Justice, on enquiries made by me, that Justice Kumar is either slow in his disposals or that his integrity is doubtful. I must mention that I also made independent enquiries in regard to Justice Kumar's integrity generally and apart from the reason for which the learned Chief Justice thought that Justice Kumar lacked integrity. Not one member of the Bar or of the Bench doubted the integrity of Justice Kumar. On the other hand several of them stated that he is a man of unquestioned integrity.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice S. N. Kumar and a further report from the I.B. was enclosed along with your aforesaid letter in regard to Justice Kumar. I had stated in my reply that after my return to Delhi I will make enquiries into the allegations contained in the I.B. report against Justice Kumar and shall thereafter tender my advice on the question regarding the further extension of his term.The report of the I.B. contains the following information in regard to Justice Kumar : (Portion relating to I.B. report omitted) I have already stated in my reply of the 22nd that I do not agree that Justice Kumar's term should not be extended as an Additional Judge for the reason either that he is slow in his disposals or that the lacks integrity. I, therefore, recommend that the term of Justice S. N. Kumar as an Additional Judge should be extended by a further period of two years. As a consequence, the term of Justice S. B. Wad should also be extended by a further period of two years. With regards, Yours sincerely, Sd/- (Y. V. Chandrachud) Shri P. Shiv Shankar, Minister of Law, Justice Company Affairs, New Delhi. 1219. This letter recommends an extension of two years to Shri S. N. Kumar ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty generally. The CJI states that in his general inquiries no member of the Bar or the Bench doubted the integrity of Justice Kumar. I regret that the letter of CJI is not only lacking in details as desired by me but too vague. The premises on which he does not doubt the integrity of Shri Justice Kumar is wholly different. In the matter of assessment of integrity, I prefer that the views of CJ, Delhi be given credence as it is in his association that the Judge concerned discharges his duties and that the has a better occasion and opportunity to watch his working and conduct. The correspondence from the CJ of Delhi addressed to me furnishes clear details which cannot easily be brushed aside. I therefore agree with the observations contained in the note of the Secretary (Justice) and opine that Shri Justice S. N. Kumar may not be continued any further as Additional Judge of the Delhi High Court after the expiry of the present tenure on June 7, 1981 and thus recommend accordingly. 1220. In the earlier part of the aforesaid note, the Law Minister has stated that he would avoid going to the I.B. reports or Shri Kumar's disposals or even the behaviour in the Court and prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated May 22, 1981 has since been received by us. 4. In view of the emphasis laid by you on keeping these letters confidential from the Chief Justice of India we have not shown these to him. This is for favour of your information.With regards, Yours sincerely, Sd/- Shri Prakash Narain, (P. Shiv Shankar) Chief Justice, Delhi High Court, New Delhi. 1222. The note of the Law Minister dated May 19, 1981 and the letter of May 29, 1981 written by the Law Minister to the Delhi Chief Justice which refer to the request of the Delhi Chief Justice clearly establish that the letter of May 7, 1981 was not sent to the Chief Justice of India not as part of any conspiracy or pact between the Law Minister and the Delhi Chief Justice but at the request of the Delhi Chief Justice. It is not also shown as to what advantage the Law Minister was deriving by withholding the said letter from the knowledge of the Chief Justice of India unless we start with the assumption that for some undisclosed reason the Law Minister was bent upon treating Shri S. N. Kumar with an 'evil eye and an uneven hand' and for that reason he kept back the letter from the knowledge of the Chief Justice of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original side with me showed that the work disposed of by me was nearly maximum. I disposed of 827 matters during 256 sittings out of which 385 were civil suits and 442 miscellaneous matters. Regarding the second allegation, I say that on the contrary it would be improper for a Judge not to finish a part-heard matter. I acted in accordance with the well-established practice of Court. I know that two Judges of this Court threatened issuing of contempt notice to the officer concerned who removed a part-heard matter from their lists. The practice is so well understood that the Registry of the Court itself fixes cases accordingly in routine. Furthermore a perusal of the proceedings in the part-heard matters would reveal the ridiculous nature of the allegations. 1223. Then Shri S. N. Kumar refers to the proceedings in Suit No. 5 of 1980, Suit No. 87 of 1975, Suits Nos. 1408, 1409 and 1417 of 1979, Suit No. 304 of 1974, Suit No. 327 of 1979, Ex. No. 11 of 1978, C.C.P. No. 13 of 1979 and Suit No. 73 of 1979. Thereafter he says : 20. As stated above, I informed the Chief Justice of India that the old established practice in Delhi High Court is that a part-heard matter goes with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice of India had made a report favourable to Shri S. N. Kumar. There appears to be not much substance in the submission that Shri S. N. Kumar was denied the benefit of a further refutation by the Chief Justice of India of the allegations in the letter of May 7, 1981 and that he had suffered thereby. Such reiteration would not have added any further strength to his case. It cannot, therefore, be said that the process of consultation had become defective or that Shri S. N. Kumar had been prejudiced by reason of the Government keeping back the letter dated May 7, 1981 from the knowledge of the Chief Justice of India out of respect to the wishes of the Chief Justice of the Delhi High Court.1125. One of the arguments urged on the basis of the Law Minister's note dated May 19, 1981 may be disposed of here. That argument is that since the Chief Justice of the Delhi High Court had stated that he was looking into the file of the Kissa Kursi Ka case ((later) V. C. Shukla v. State (Delhi Administration), in which Shri O. N. Vohra had convicted late Shri Sanjay Gandhi (son of the Prime Minister) who was later on acquitted by the Supreme Court, the Chief Justice of the Delhi High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a Judge. Hence it cannot be said that there was any transgression of ordinary rules of official conduct on the part of the Government in finally processing the file by May 27, 1981.1227. The President has taken his decision on a consideration of the material before him and in doing so he is not shown to have relied on any irrelevant ground. The President, as observed earlier, is entitled to arrive at his own decision on the question of appointment of a Judge after consultation with the dignitaries mentioned in Article 217(1) of the Constitution. He is not, however, bound by the opinion of any of them although he is expected to give due regard to the opinions expressed by them. The President in the instant case has, as stated by the learned Attorney-General, out of prudence decided not to reappoint Shri S. N. Kumar as the opinions of the two constitutional dignitaries were conflicting on the question of integrity, a question vital to the appointment of a Judge. There appears to be no constitutional impropriety in the decision of the President. The reason for not reappointing Shri Kumar is not an irrelevant one. Moreover there is a distinction between the appointment of a Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice of India has exonerated him fully. It is also made clear that the Court has declined to grant the prayer of Shri S. N. Kumar without expressing any opinion one way or the other on his integrity or efficiency. The result of this case should demonstrate to all those who are today holding the posts of Judges and to those who aspire after judgeship how difficult it is to maintain the fair image of a Judge. The decision of the President not to appoint Shri S. N. Kumar as an Additional Judge of the High Court of Delhi cannot, therefore, be interfered with.PART X 1229. The validity of the circular letter dated March 18, 1981 sent by the Law Minister to all the Chief Ministers is seriously assailed before us by the petitioners. It is contended by them that the letter amounts to a threat to all the Additional Judges whose consent for being appointed as permanent Judges in High Courts other than the one in which they were working is sought. The Government contends that the letter does not contain any such threat and that it had been sent in order to implement the policy of the Government to have some Judges in every High Court who belong to other States. By the letter in question, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a copy of this letter to the Chief Justice of your High Court. With regards, Yours sincerely, Sd/- (P. Shiv Shankar) To 1. Governor of Punjab 2. Chief Ministers (by name) (except North-Eastern States) 1230. In its Fourteenth Report, the Law Commission suggested that the whole country should be treated as a single unit for the purpose of selection of Judges of the High Court. The relevant part of the report reads : 59. Further, the whole country must be treated as a single unit for the purpose of selection as it is vitally important that the best available talent which the country is capable of providing be mobilized for the task of meeting a situation which has undoubtedly assumed the proportions of an emergency. If suitable persons of the necessary merit and character are in the opinion of the appointing authority not available in the State, the authority should not hesitate to draw upon persons available in other States. Selections from the Bar must necessarily be of persons of outstanding merit commanding a large practice who may well be willing to make a pecuniary sacrifice and render public service by accepting these judgeships. An effort should be made to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerations or affected by issues which may rouse local passions and emotions. As observed by us in one of our earlier Reports, one of the essential things for the due administration of justice is not only the capacity of the Judges to bring a dispassionate approach to cases handled by them, but also to inspire a feeling in all concerned that a dispassionate approach would underlie their decision. Quite often, cases which arouse strong emotional sentiments and regional feelings come up before courts of law. To handle such cases, we need Judges who not only remain unaffected by local sentiments and regional feelings, but also appear to be so. None would be better suited for this purpose than Judges hailing from other States. It is a common feeling amongst old lawyers that apart from cases with political overtones, the English Judges showed a sense of great fairness and brought a dispassionate approach in the disposal of judicial cases handled by them. We in India are in the fortunate position of having a vast country. There can, therefore, be no difficulty in having a certain percentage of Judges who hail from other States. The advantages gained by having persons from other State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rossing my permissible limits if I embark to write an essay or a thesis on the various aspects of the needs of such public interest highlighting the minus points also in them, nor will it serve any useful purpose. These are matters of policy decision entirely within the realm of the governmental power.1233. These two extracts from the decision in Sankalchand Himatlal Sheth case (Union of India v. Sankalchand Himatlal Sheth, clearly state that if as a matter of policy the Government proposes to appoint some Judges in every High Court from outside the State, it is a matter within the realm of the Government. They have not stated that it is constitutionally impermissible to do so. 1234. The objections raised by the petitioners to the opinions of the Law Commission referred to above are that they could not be relied on as the said opinions had not been tested by the 'purifying process' of an argument at the Bar and secondly the recruitment of members of the Bar or of the subordinate judiciary functioning outside the State would be unconstitutional as there would be no possibility of an effective consultation with the Chief Justice of the High Court and the Governor of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this connection is that this is an indirect attempt to transfer some Additional Judges from one High Court to another. It cannot be so for the reason that the transfer of an Additional Judge [appointed under Article 224(1)] unless the arrears have been cleared off and the transfer of an acting Judge [appointed under Article 224(2)] in any event would not be possible at all. An Additional Judge is appointed for a term not exceeding two years only with a view to clearing off the arrears in a High Court. If that is the sole object of appointing him, how can he be transferred as an Additional Judge in the public interest from that Court to another Court unless the purpose for which he is appointed is achieved namely, clearing off the arrears ? Moreover when his stay as an Additional Judge is very short it would not subserve the interest of efficiency of public service if he is made to work in more than one High Court during that short period unless there is not sufficient work to be assigned to him in the High Court in which he is initially appointed as an Additional Judge. The case of an acting Judge appointed under Article 224(2) of the Constitution is a self-evident one. An acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of India, Article 217(1) and Article 222 of the Constitution had been violated. The letter as can be seen from its tenor is intended to find out whether any Additional Judge is willing to be appointed as a Judge in any other High Court. Such appointment has to be made only in accordance with Article 217(1) of the Constitution. Before making such appointment, the President has to consult all the functionaries mentioned in Article 217(1) including the Chief Justice of India. Article 222 of the Constitution does not come into picture at all as no transfer is contemplated under the letter. The letter relates to initial appointments only. In the circumstances there is no error committed by the Law Minister in writing the impugned letter to the Chief Ministers.1239. All the contentions of the petitioners regarding the circular letter of the Law Minister dated March 18, 1981, therefore fail. PART XI 1240. We are concerned in the case of Shri K. B. N. Singh with the question whether the order of his transfer as the Chief Justice of the High Court of Madras is valid or not. Earlier it has been held that the consent of the Judge to be transferred is not necessary under Article 222 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from outside the State. This suggestion stems from the proposed policy of the Government which is clear from the statement of the Law Minister in the Lok Sabha on July 24, 1980, the relevant part of which reads : .... Policy is whether we should have the Chief Justice from outside. This is the policy. How we should have is a matter of mechanism. There are similar references to it in some other speeches of the Law Minister both in the Lok Sabha and in the Rajya Sabha. Even though it appears from some of the speeches of the Law Minister that such a policy had not taken a final shape, the Chief Justice of India had been told that the Government had an idea to bring into force such a policy before the middle of 1980. From certain notings on the file relating to the appointment of Chief Justice of the Delhi High Court which were disclosed by the Union Government as per orders of the Court dated November 18, 1981 it is evident that there was discussion between the Central Government and the Chief Justice of India about the policy of appointing the Chief Justice of every High Court from outside the State. The first note of the Law Minister dated May 15, 1980 where he specifically refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach individual situation as and when it arises. . . .At this stage it is unnecessary to say anything more on the subject except to clarify that though I recognise the need to evolve an all-India policy for appointments of Chief Justices in the various High Courts, I do not think that it will be either feasible or proper to transfer each and every sitting Chief Justice of the High Court to another High Court, or to appoint an outside Judge as the Chief Justice whenever a vacancy of a Chief Justice arises. Such a course will introduce numerous complications the general nature of which I have discussed with the Law Minister. The question is so replete with practical difficulties and involves a question of such high principle that a very careful thought shall have to be given to it before a final decision is taken. I, therefore, reiterate my earlier recommendation that Mr. Justice Prakash Narain should be appointed as the permanent Chief Justice of the Delhi High Court and Shri Justice Kuppuswami as the permanent Chief Justice of the Andhra Pradesh High Court. I consider it unnecessary to add that these appointments should be subject to the general policy of appointing Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in different areas and in the case of different institutions or bodies by reason of administrative compulsions and such application cannot be considered as either arbitrary or capricious or unconstitutional. Sometimes the application of a policy or a law in all areas or in respect of all institutions to which it is ultimately intended to apply simultaneously may defeat the very policy or law, even though it may be otherwise beneficial. The difficulties involved in such 'wholesale' application might have given rise to the difficulty expressed by the Chief Justice. This appears to be a reasonable construction to be placed on the said statement of the Chief Justice of India. One should remember that the said statement is in a letter and not in a statute and is one made in the context of previous correspondence and discussions which have gone on for some time in an informal way. Moreover a policy is not something which should take the form of a formal statute or a written code. It can be gathered from a course of action or conduct and it can take its birth when the first step is taken in its direction.1245. The question of policy is a matter entirely for the President to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r discriminatory or not being in the public interest. In fact such transfers are in the public interest for reasons already stated. 1247. It is seen from the counter-affidavit of the Chief Justice of India that the transfer of Shri K. B. N. Singh had not been recommended by him on the basis of any allegation of misbehaviour or of incapacity which can form a basis for action under Article 218 read with Article 124(4) and (5) of the Constitution. The relevant part of that counter-affidavit reads : It is true that he (Shri K. B. N. Singh) said that it was possible that some baseless complaints may have been made to me and that he would like to remove any wrong impression which those complaints may have created. I told him that I do not go by baseless complaints, that I did not believe that his conduct was blameworthy but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of the High Court, he was free to do so. Thereupon Shri K. B. N. Singh told me how certain persons connected with the High Court were influenced by communal considerations and how he, on his own part, did not permit communal or any other extraneous consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res that all the relevant facts must be placed before the Chief Justice. Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge of this constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed. . . . 1251. It is evident from the above passage that the duty of considering every relevant fact pertaining to a Judge is of the Chief Justice of India on the question of his transfer under Article 222 of the Constitution. In his counter-affidavit the Chief Justice of India has given the particulars of the enquiry he had made before recommending that Shri K. B. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with me for about 10-15 minutes and that I was non- committal in the matter of his transfer. Shri K. B. N. Singh saw me at my residence on January 8, 1981 at 7.30 p.m. He was with me for quite some time much longer than 10 or 15 minutes. I discussed with him the question of his mother's advanced age and illness, which his proposed transfer to Madras. I told him that I was unable to agree with him since there were other dependable persons in his family who could look after his mother and that, in any case, his brother Shri S. B. N. Singh who was practising in the High Court was quite capable of looking after the mother. He replied that his mother had a special attachment to him and he could not leave her to the care of his brother or other members of the family. It is true that he said that it was possible that some baseless complaints may have been made to me and that he would like to remove any wrong impression which those complaints may have created. I told him that I do not go by baseless complaints, that I did not believe that his conduct was blameworthy, but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as High Court. Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer . At the hearing the Court was informed that the President had not discussed the matter personally with the Chief Justice of India. The expression President should be understood here in the constitutional sence. The discussion must have taken place with the Minister concerned. It is not possible to accept the submission that no such discussion could have taken place at all after Shri K. B. N. Singh met the Chief Justice of India on the evening of January 8, 1981 because the Prime Minister had taken the decision on January 9, 1981 and there was no written record in support of it. From the records produced before us it is seen that discussion has gone on between the authorities concerned sometimes over telephone and sometimes at a meeting. No minutes are kept of many such discussions. It cannot, therefore, be said that either there was no time to discuss or no such discussion had taken place at all. It has to be borne in mind that the Chief Justice of India asked Shri K. B. N. Singh to meet him at New Delhi to discuss the matter further an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u and Bihar had not been consulted in accordance with a memorandum issued by the Government. The question whether there can be any memorandum supplementing the provisions of Article 222 is a matter of doubt. But since the Court is informed that both the Chief Ministers had been consulted about the transfer of Shri K. B. N. Singh, there is no need to probe into this point any further.1256. The decision to transfer a Judge under Article 222 of the Constitution, as already stated, is an administrative one. It is not alleged that any of the functionaries participating in that decision had any ill will against Shri K. B. N. Singh. The existence of mala fides may have been a ground to set aside the impugned order of transfer provided it had been alleged and established. In E. P. Royappa v. State of Tamil Nadu ) while rejecting a contention against an order of transfer which had been impugned in that case, Bhagwati, J. has observed thus : (SCC p. 41, para 92) Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation of powers, or upon the ground that issuance of a writ is inexpedient because of possible difficulty in enforcing it. Under this view, a writ is not issuable against an executive for the purpose of compelling him to perform a duty, even though it is imposed upon him by statute. This reasoning has been rejected in many jurisdictions, which allow the maintenance of mandamus proceedings against a Governor under certain circumstances. All courts agree that the remedy is not available to control the performance by a Governor of political functions or functions requiring the exercise of discretion, but some will issue the writ to require the performance of ministerial duties, or to restrain an act in violation of law. Needless to say, mandamus will not issue to compel the performance by a Governor of an act which does not fall within his prescribed duties, or which has already been performed. 141. Political and discretionary functions. - State Governors are invested by law with important governmental or political powers and duties belonging to the executive branch of the government, and the due performance thereof is entrusted to their official honesty, judgment and discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States in his argument, although appearing in behalf of the officer to whom the writ of mandamus was prayed, conceded that such a writ might be issued against the President of the United States to compel him to perform a merely ministerial duty. . .1259. Para 28 of Halsbury's Laws of England, (4th Edn.), Volume 1, page 32 reads : 28. Duty and discretion. - The repository of a statutory power may be endowed with a discretion whether to act, and, if so, how to act. A discretionary power is typically conferred by words and phrases such as 'may', 'it shall be lawful', 'if it thinks fit' or 'as it thinks fit'. A statutory discretion is not, however, necessarily or, indeed, usually absolute : it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise; or a duty to act when certain conditions are present, but a discretion how to act. Discretion may thus be coupled with duties. On the other hand, duty unaccompanied by any discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damus commanding the minister to refer the complaint to the Committee for investigation. The Divisional Court made an order against the minister. But the Court of Appeal by a majority (Diplock and Russell, L. JJ., Lord Denning, M.R. dissenting) set aside the order of the Divisional Court. On further appeal to the House of Lords, the appeal was allowed and the case was remitted. The House of Lords held that the complaint was a substantial and a genuine complaint, neither frivolous, repetitive nor vexatious, the reasons of the minister for not referring the matter to the committee of investigation namely that the complaint raised wide issues, that his reasons were unfettered so that in effect it was sufficient that he should bona fide have considered the matter, were not good reasons in law, and indeed left out of account the merits of the complaint and showed that he was not exercising his discretion in accordance with the intention of Section 19 of the Act of 1958. The matter was remitted to the Queen's Bench Division to require the minister to consider the application of the appellants in accordance with law. Lord Upjohn in his concurring judgment observed that even if the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional or statutory duty of a Governor or the President to exercise his discretion with respect to a certain matter he may be required by mandamus to do so but the manner in which he has to discharge that duty cannot be directed by the courts. As observed in the English decision referred to above it is manifest that a statutory discretion is not necessarily or indeed usually absolute, it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken, whether to act and how to act. I am of the view that the power conferred on the President by Article 216 of the Constitution to appoint sufficient number of Judges is a power coupled with a duty and is not merely a political function. In the instant case ordinarily the court would have been reluctant to issue any mandamus to the Government to comply with the duty of determination of the strength of Judges of High Courts. But having regard to the undisputed total inadequacy of the strength of Judges in many High Courts, it appears to be inevitable that the Union Government should be directed to determine within a reasonable time the strength of permanent Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as the conditions of service of judicial officers, particularly of the members of the subordinate judiciary, their salaries and allowances, housing conditions etc. which needed to be looked into very urgently came up for discussion. Similarly many facets of the conduct of Judges and of lawyers were also discussed. During the hearing many useful remarks came to be made both on the side of the Bar and on the side of the Bench. All this exercise was done with a view to emphasising the importance of the independence of the judiciary and the independence of the Bar which are fundamental to a Republican Constitution whose main characteristic ought to be virtue. An observation of David Hume is worthy of note here. He said :To balance a large State of society whether Monarchical or Republican, on general laws, is a work of so great difficulty that no human genius however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many should unite in this work; experience must guide their labour; time must bring it to perfection; and the feeling of inconvenience must correct the mistakes which they inevitably fall into in their first trials and expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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