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TMI Blog1993 (10) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Ors. etc. etc. (1982) 2 SCR 365 : (AIR 1982 SC 149), required reconsideration by a larger Bench. This is how these questions arise for decision by this Bench. 2. The context in which the aforesaid two questions have been referred for decision by this Bench requires that they be considered in all the facts as were argued before us by all, to give a comprehensive answers to the problem. It is, therefore, appropriate to reformulate the two questions as under: (1) Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts. 3. Able assistance was afforded to us by several eminent counsel who appeared to canvass the different viewpoints in order to focus attention on every aspect of these questions. Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushan argued for reconsideration of the majority opinion in S.P. Gupta, contending that the role of the Chief Justice of India in the matter of appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion of the executive's role in the process of appointment of Judges is contemplated. 5. The learned Attorney General, in substance, canvassed for acceptance of the opinion of Pathak, J. (as he then was) in S.P. Gupta as the correct view, providing a middle course. The learned Advocate General of Karnataka agrued for reconsideration of the majority opinion in S.P. Gupta. He contended that the role of the executive is merely to suggest the names of those it considers suitable, to the Chief Justice, but initiation of the proposal must be by the Chief Justice and the opinions of the Chief Justice of India and Chief Justice of the High Court are entitled to much greater weight. The learned Advocate General submitted, that any person disapproved of by the Chief Justice of India cannot be appointed a Judge; and the President is not bound to appoint every one who may be recommended. He also submitted that the opinion of the judiciary binds the executive even in the matter of fixation of Judge-strength under Article 216, as a matter of policy. On the other hand the learned Advocate General of Sikkim contended that the primacy is in the executive, and the majority opinion in S.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependence of the judiciary to be kept in view, while interpreting the relevant provisions of the Constitution, was summerised by Bhagwati, J. (as he then was), thus : Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution. 11. Pathak, J. (as he then was) in S.P. Gupta under the topic 'The Rule of Law and the administration of justice', stated thus : While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary. An Independent and impartial judiciary supplies the reason for the judicial insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness. It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of law and of men. xxx xxx xxx Another definition of rule of law has been given by Friendrich A. Hayek in his books : Road to Serfdom and Constitution of Liberty . It is much the same as that propounded by the Franks Committee in England : The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will known where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of the decision taken in accordance with the rule of law. xxx xxx xxx If it is contrary to the rule of law that discretionary authority should be given to government departments o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted. 15. It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was observed therein, as under : In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of consultation has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital. The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any 'power' or 'right' to appoint Judges. It is essentially a discharge of a constitutional trust of which certain constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the work that confronts us is even more difficult than the work which we had when we ware engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating. (emphasis supplied) (The Framing of India's Constitution, Vol. IV B Shiva Rao pages 957 ,58) 17. The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have been duly heeded by the functionaries entrusted with the constitutional obligation of properly composing the higher judiciary, and ensuring its satisfactory functioning, for the administration of justice in the country. The adverse agnesauence of this failure is manifested in many ways. 18. It is well known that the appointment of superior Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that time the personality is fully developed and the propensit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court and the High Courts; that the primacy is with the Central Government which is to take the decision after consulting all the constitutional functionaries; and the Central Government is not sound to act in accordance with the opinion of all the constitutional functionaries consulted, even if their opinion be identical. It was also held in S.P. Gupta that for initiation of the proposal for appointment of a Judge of the Supreme Court or a High Court, there could not be a blanket embargo on the executive initiating the proposal, even though it would be appropriate that the executive's right to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Court or the Chief Justice of India. It is this view of the majority in S.P. Gupta and, particularly, the same literal meaning given to the word 'consultation' in Articles 124(2) and 217(1) in relation to all consultees, together with the final authority given to the Central Government in the matter of appointments, which gives rise to the occasion for its reconsideration. 22. It is also of significance, as noticed in Subhash Sharma, that 'the Union Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge 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-two year: 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 tot 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) (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. 222. Transfer of a Judge fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance and these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector. 29. The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate. 30. For this reason, it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Every judge of a high court shall hold office during His Majesty's pleasure. xxx xxx xxx 34. Then, in the Government of India Act, 1935, provision for the establishment and Constitution of the Federal Court was made in Section 200, while the Constitution of High Courts was provided for in Section 220. The relevant parts of these Sections were : 200. Establishment and Constitution of Federal Court. (1) (2) Every judge of the Federal Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty-five years Provided that (a) a judge may by resignation under his hand addressed to the GovernorGeneral resign his office; (b) a judge may be removed from his office by His Majesty by warrant under the Royal Sign Manual on the ground of misbehaviour or of infirmity of mind or body, if the Judicial Committee of the Privy Council, or reference being made to them by His Majesty, report that the judge ought on any such ground to be removed. xxx xxx xxx 220 Constitution of High Courts. (1) . (2) Every judge of a High Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose in prescribing for such consultation, even though the appointment is ultimately an executive act. 37. This clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown, is a sure indication that irrespective of the question of primacy of the Chief Justice of India in the matter of appointments, the Constitutional provisions cannot be construed to read therein the absolute discretion of primacy of the Government of India to make appointments of its choice, after completing formally the requirement of consultation, even if the opinion given by the consultees of the judiciary is to the contrary. In our opinion, this departure made in the Constitution of India from the earlier scheme under the Government of India Acts, is itself a strong circumstance to negative the view that in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the Chief Justice of India all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court. 38. The cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts. 41. The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance than that of the Lord Chancellor in United Kingdom. 44. The majority view in S.P. Gupta to the effect that an executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which punishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fortiori, advice given by the Council of Ministers which binds the President and requires him to act in accordance therewith, had to be the advice given in accordance with the constitutional provisions, as interpreted by this Court. 48. If it were to be held that, notwithstanding the requirement of Articles 124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the view of the Chief Justice of India, and the President is bound by Article 74(1) to act in accordance with that advice, then the constitutional purpose of introducing the mandatory requirement of consultation in Articles 124(2) and 217(1) would be frustrated. It is for this reason, that in the matter of appointments of Judges of the superior judiciary, the interaction and harrnonisation of Article 74(1) with Articles 124(2) and 217(1) has to be borne in mind, to serve the constitutional purpose. In short in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would arise only if the resultant of the consultative process is not one opinion reached by consensus. 52. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the unanimous view of the Constitution Bench, in Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. (1985) 4 SCC 417: AIR 1987 SC 454, stated thus : We would also to point out that in some of the States, and the State of Haryana is one of them, the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the Judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for the Judicial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected, because if we do not have good, competent and honest Judges, the democratic polity of the State itself will be in serious peril. It is therefore essential that when selections to the Judicial Service are being made, a sitting Judge of the High Court to be nominated by the Chief Justice of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual opinion, but the collective opinion formed after taking into account the view of some other Judges who are traditionally associated with this function. 57. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary 'symbolised by the view of the Chief Justice of India', is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy. 58. The rule of law envisages the area of discretion to be the minimum requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed. However, in the case of Jammu Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal. 62. The power of transfer can be exercised only in 'public interest' i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Article 222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of this tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not. 63. The Constituent Assembly Debates indicate that the High Court Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein. NORMS 67. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned emerging from the actual practice and crystallised into conventions not exhaustive are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers. Appointments (1) What is the meaning of the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' ? 68. This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommend the initial appointment of a person to a High Court other than that for which the proposal was initiated, provided that the constitutional requirements are satisfied. (3) Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court. The likelihood of the Supreme Court being deprived of the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter. 72. It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and Intended to secure the independence of the judiciary and the appointment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinion of all Judges consulted by him, as a part of the record. 73. Expression of opinion in writing is an in built check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the constitutional functionaries, as primacy in the manner indicated. (10) To achieve this purpose, and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme court, and the Chief Justice of the High Court in the case of the High Courts. This is the general practice prevailing, by conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctuate the purpose. (14) The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief Justices of the High Courts and the Chief Justice of India, to avoid the institution being rendered needless for any significant period. In the case of appointment of the Chief Justice of a High Court to the Supreme Court, the appointment of the successor Chief Justice in that High court should be made ordinarily within one month of the vacancy. (15) Apart from the two well known departures, appointments to the office of Chief Justice of India have, by convention, been of the seniormost Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the seniormost Judge to hold the office, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice. In transfer of puisne Judges, parity in proportion of transferred Judges must be maintained between the High Courts, as far as possible. (5) The recommendations in the Report of the Arrears Committee (1989 90) mention certain factors to be kept in view while making transfers to avoid any hardship to the transferred Judges. These must be taken into account. JUSTICIABILITY Appointments and Transfers 74. The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decision, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge Strength 77. Article 216 deals with Constitution of High Courts. It provides that very High Court shall consist of a Chief Justice and 'such other judges as the President may from time to time deem it necessary to appoint.' To enable proper exercise of this function of appointment of 'other Judges', it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filing. This is essential to ensure speedy disposal of cases, to 'secure that the operation of the legal system promotes justice' directive principle 'fundamental in the governance of the country' which, it is the duty of the State to observe in all its action; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the law' delay must be justiciable, to compel performance of that duty. 78. Accordingly, it must be held that fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made. (3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration can be figuratively formulated thus: (1) Whether the present day 'Solomon's throne (symbolizing the majesty of our justice system) is fully supported by the 'Lion's (symbolizing the legislature and executive) on both sides? (2) Weather the 'Lions' are still under the 'throne'? (3) Whether, the 'Lions' are circumspected from checking or opposing any of the points of sovereignty of the judiciary (i.e. judicial sovereignty)? (4) Whether it is for the 'Lions' to pronounce the name of 'Solomon' and his successor to occupy the throne? (5) Whether 'Solomon' has any right of proposing any celebrated structural reform to his 'House' (symbolizing the judicial structure) or is it for the 'Lions' to make such proposal to 'Solomon's House' without reference to Solonon? (6) Is it for the 'Lions' to make any alteration to the structure of the Imperial State of 'Solomon's House' and propose sweeping reforms whether Constitution and composition of a 'Kingdom of Solomon' even without reference to Solomon or even inexcusably ignoring any suggestion of Sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant passage of the above Order reads thus : Returning to the views of the majority, we may set out the views of these learned Judges in the Judgment as to 'consultation' and primacy of the position of the Chief Justice of India which would in our opinion require reconsideration. 87. The questions on the basis of the above Order that arise for consideration are : (1) Whether the opinion of the Chief Justice of India in regard to the appointment of Judges to the Supreme Court and High Courts as well as in regard to the transfer of High Court Judges, is entitled to primacy? and (2) Whether the matters including the matter for fixation of the Judgestrength in the High Courts are justiciable? 88. I had the advantage of perusing the judgment of my learned brother, J.S. Verma, J. Though I am in respectful agreement with most of the conclusions arrived at by him, yet having regard to the important constitutional issues involved in this case, I would like to give may own reasons for those conclusions and also add some of my views on a few other points. 89. Even at this prefatory stage, we with greatest respect to the opinion of the eminent Judges in Gupta's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and declare what the Constitution speaks about and mandates. 95. The exploration of the new principles are essential in those areas no before explored; more so when the old principle are found to be to responding to the unresolved and unforeseen modern challenges or to have become inapplicable to the new situations or found to be unsound. At the same time, it is not to be lost sight that in the above institutional task, the Court does not create any new right net known to the court does not create any new right not known to the constitutional text or history but merely discovers and announces only the existing right so far hidden under the surface on a better understanding of the values of the underlining intend and spirit of the Constitution in the light of a new set of conditions. The resultant corrolary would be that the old legal concept and such principles may be swept away by a new concept and under a new set of conditions or a fresh outlook. 96. The proposition that the provisions of the Constitution must be confined only to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avel Pandian, J) was party, the following observation has been made while emphasising the power of this either recalling or reviewing its own order : Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review and order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected. Indeed, no historic precedent and long term practice can supply a rule of unalterable decision. 101. Case laws, including many leading decisions of the Constitution Benches wherein the earlier views expressed and the principle enunciated have been reconsidered and over-ruled are not wanting. In this connection, it would be germane to refer to an illuminating decision of the Supreme Court of Canada in Queen v. Beauregard (1987) LRC (Constitution 180) wherein Chief Justice Dickson rejected the Strict Construction Argument in interpretation of constitutional provisions (the Canadian constitution, Act 1867, s-100) and observed thus : With respect to the first of these arguments, I do not think Section 100 imposes on Parliament the duty to continue to provide judges with precisely the same type of pension they received in 1867. The Canadian Constitution is not locked forever in a 119-year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867 airplanes, nuclear energy, hydroelectric power it is surely not straining Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the words without an acceptance of the line of their growth. 105. It is on account of our earnest inquisitiveness for healthy judiciary and love for justice, we shall probe the physiology of the judicial system and strive to answer these two structural questions, posed for examination purely on an objective test with utmost detachment and fairness, and free from every from a interest, loyally, obligation or prior commitment since the decision to be pronounced on the interpretation of the relevant constitutional provisions is intended to ensure a fortress to protect the independence of judiciary. 106. We shall presently narrate the chronology of events and the mass of enthralling historical material including the opinion of some learned outstanding Judges here and elsewhere, eminent jurists and the Law Commissions that necessitated the reconsideration of the decision in S.P. Gupta's case. (1) In the order of reference dated 26.10.1990 made in Writ Petition No. 1303 of 1987 (along with Writ Petition Nos. 13003 of 1985 and 302 of 1987) vide Subhash Sharma's case (supra) it has been pellucidly observed that the correctness of the majority view in Gupta' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial . In his view, the recommendation by the suggested collegium would be far more credible and acceptable than of a single individual in the narrow confines and secrecy of his chamber. Vide R.K. Hegde, the Judiciary Today: A plea for Collegium 38. (4) The Law Commission chaired by Justice D.A. Desai in its 121st Report on A new forum for Judicial appointments while recommending the establishment of a National Judicial Commission to serve as a consultative body in the matter of appointment of Judges to the Supreme Court and High Courts, has made its conclusion in Chapter IX under the caption Corollary as follows : If the structure recommended herein is acceptable, it would necessitate amendment to the Constitution. The power to appoint a Judge of the Supreme Court and a Judge of the High court, which today vests in the President of India would continue to vest in the President of India. The power has to be exercised under the new dispensation in consultation with the National Judicial Service Commission. To that extent, Article 124 and Article 217 will have to be amended. Similarly Article 233 and 234 will have to be amended. (5) It is quite appropriate, in this conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal influence, advocated in July 1977 that the time is now ripe for a Judicial Appointments Committee to be set up in Australia composed of Judges, lawyers and, indeed laymen likely to be knowledgeable in the achievements of possible appointee. (Vide Garfield Barwick, The State of Australian Judicature 51 Aus. L.J. 480) (vi) The Royal Commission (of Australia) on courts, chaired by Justice Beattk, recommended that a Judicial Commission should consider all judicial appointments including appointment of High Court Judges. Vide Harry Gibbs, The Appointment of Judges , 61 Aus. L.J. 7,8. 110. Thus, there is a host of proposal and recommendations here in India and elsewhere for bringing vital changes in the existing procedure and methodology in the matter of selection and appointment of Judges to the superior judiciary and for restructuring the entire judicial system. (7) The Constitution (Sixty-seventh Amendment) Bill, 1990 (Bill No. of 1990 was introduced in Lok Sabha (Parliament) on 18.5.1990, empowering the President to constitute a high level Judicial Commission known as the National Judicial Commission for making recommendation as to the appointment of a Judge of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectness of the ratio in S.P. Gupta's case of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the Amendment the Chief Justice of India would become the Chairman of the Commission. In case the Commission is not constituted, the two questions indicated above which are of vital importance to the efficient functioning of the judicial system in the country require consideration and there is an element of immediacy in matter, we, therefore, suggest that the writ petition on the two issue indicated above may be taken up for hearing at an early date and preferably before the ending of this year. (emphasis supplied) 114. Though the passing of the amendment and its implementation had been watched with bated breath and awaited with a great deal of anxiety, nothing tangible in this regard had come out but no the other hand, the Bill unfortunately lapsed consequent upon the dissolution of the 9th Lok Sabha and there does not seem to be any ray of hope for the revival of the Bill. 115. It was only in the above brief historical recapitulation including the opinion of the experienced Judges and jurists etc. etc. and the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coarctation be imposed on the authority of judiciary and the independence of judiciary being kept in pensileness, when the Constitution itself recognises a clear demarcation separating the judiciary from the executive under Article 50 which injects the enduring principle of constitutional policy and which is the underlying strength for a sound judicial system. 118. Notwithstanding the above chorus of protest in general against the decision of the majority in Gupta, there was a small cleavage of opinion, in that while some learned Judges held the view that the opinion of the CJ1 in all matters of judicial administration should receive 'primacy', others were of the view that in exceptional circumstances the executive may veto the proposal of the CJI for sufficient and strong reasons to be recorded and communicated to the CJI. Likewise, there was some difference of opinion with regard to the extent of justiciability in the matter of fixation of Judge-strength. 119. Mr. Parasaran the learned senior counsel appearing for the opinion of India and the learned Attorney General offering his valuable assistance to the Court on notice, with their sound knowledge of constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the appointment of Judges, can be rectified and remedied by issue of mandamus to the appointing constitutional functionary and ultimately requested acceptance of the view of Pathak, J (as the learned Chief Justice then was) in Gupta's case. 123. Among the various States which made their appearance on notice represented by their respective learned Advocates General, the State of Karnataka has urged for reconsideration of the majority opinion in Gupta's case whereas the other states-namely Gujarat, Assam, Sikkim and Orissa have fully supported the decision in Gupta. The State of Meghalaya does not express any positive opinion either way. The plea of the State of Nagaland is for the primacy to the opinion of CJI and also appointment of a National Judicial Commission. 124. The learned Advocate General of Sikkim by his oral submission affirmed the stand taken by his State and added that according primacy exclusively to the executive in the decision in question does not suffer from any infirmity. 125. Mr. R.K. Garg, the learned senior counsel forcefully advanced his submission with his usual eloquence using his formidable legal knowledge in constitutional law and his v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by executive action but on the other hand it is firmly secured by various specific provisions, expressly articulated in the Constitution along with the extraordinary power of Judicial review. They are : (a) Every person appointed to be a Judge of the Supreme Court or of a High Court before he enters upon his office, makes and subscribes an oath or affirmation according to form Nos. IV and VIII as the case may be, as set out in the Third Schedule to the Constitution; before the authority prescribed under Articles 124(6) and 129 respectively whereby the Judge concerned bears true faith and allegiance only to the Constitution of India and not to the appointing authority (vide Special Reference No. 1 of 1964 : 1965 (1) SCR 413 at 447 F-H and 448 A-B). (b) The tenure of office that the appointee holds, is fixed by the Constitution itself stating that the Judge appointed shall hold office until he attains the age of sixty five years in the case of the Supreme Court as per Article 124(2) and of sixty two in the case of High Court as per Article 219, but not at the: pleasure of the appointing authority. (c) Every Judge of the Supreme Court or a High Court is entitled to such pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts of record, having all power of such a Court including the inherent power to punish for contempt of themselves as empowered by Article 129 and 215 respectively (See Pritam Pal v. High Court of Madhya Pradesh, Jabalpur (1993) Supp. 1 SCC 529). (h) The entire judicial proceedings are in open Court, unless the Courts in rare and exceptional circumstances decide otherwise. The Judges are ensured total freedom, of course, after entering the office, from any overt or covert pressure of interference in the process of adjudicating causes brought before them. In this connection Mr. Parasaran drew our attention to a sentence from the book on Constitutional Law (8th Edn. Page 32) by E.C.S. Wade and A.W. Bradly, which reads thus: judicial independence is secured by law and public opinion and the standard of conduct maintained by both Bench and Bar. (i) Both Supreme Court and High Courts have jurisdiction of judicial review of all actions of the State as defined in Article 12 and all other statutory authorities. Recently it has been ruled in Sub-Committee on Judicial Accountability v. Union of India and Ors. (1991) 4 SCC 699: 1991 AIR SCW 3049. That even in relation to procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gue in different parts of the globe particularly in U.S.A. and U.K. wherein the executive is exclusively vested with the power of making judicial appointments to higher judiciary, it has been said that when the judicial independence has never been injured in those countries by the existing process, the contention that the mode of appointment of judges from the starting point goes a long way in securing the independence of judiciary cannot be countenanced. They were passionate in quoting some supporting passages of their view from various text books on the formation of judicial system in those countries. 135. The above arguments, that the independence of judiciary is satisfactorily secured by the Constitutional safeguard of the office that a Judge holds and guarantees of the service conditions alone and not beyond that, are in our considered opinion, unable. In fact we are unable even to conceive such an argument for the reason to be presently stated. 136. When it is well-recognised that the Courts are an impenetrable bulwark against every assumption of power in the legislative or executive and that the understanding of the Courts and respect for their authority by the people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the background of the breathtaking and cascading argument, advanced by both the parties, of course with the motive of invigorating the judicial system and emphasizing the importance of its various aspects which is absolutely indispensable for ensuring the 'Rule of Law', as adumberated by the Constitution. 140. Our Constitution is a radiant vibrant organism and under the banner of Sovereign, Socialist, Secular, Democratic Republic, steadily grows spreading the fragrance of its glorious objectives of securing to all citizens: Justice, Social Economic and Political. 141. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex place of birth and the socio-economic chronic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the 'Rule of Law' which in the words of Bhagwati, J (as the learned Chief Justice then was) runs through the entire fabric of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and curbed. 145. Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) in Union of India v. Sankal Chand Himatlal Sheth and Anr. (1978) 1 SCR 423: AIR 1977 SC 2328, said that the independence of judiciary is the 'cardinal feature' and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary. 146. Bhagwati, J (as the learned Chief Justice then was) who led on behalf of the minority observed in the same judgment i.e. Union of India v. Sankal Chand Himatlal Sheth and Anr. (supra) observed: the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab (1975) 1 SCR 814 : AIR 1974 SC 2192, can become fearless and free only if institutional immunity and autonomy are guaranteed. 147. Again Bhagwati, J in Gupta's case has said in paras 223224 as follows : The concept of independence of judiciary is a noble concept which inspires the constitutional s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Judicial Accountability v. Union of India (supra) and (3) Shri Kumar Padmaprasad v. Union of India (1992) 2 SCC 428 : 1992 AIR SCW 1093. 150. There is plethora of judicial pronouncements on this concept, but we think that it is not necessary to recapitulate all those decisions and swell this judgment, except saying that to have an independent judiciary to meet all challenges, unbending before all authorities and to uphold the imperatives of the Constitution at all times, thereby preserving the judicial integrity, the person to the elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior interest, loyalty and obligation and prepared under all circumstances or eventuality to pay price, bear any burden and to meet any hardship and always weded only to the principles of the Constitution and 'Rule of Law'. If the selectee bears a particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own connections, without apprehension of personal consequences to him self. 154. As Dr. Robert Mac Gregor Dawason has pointed out that the Judge must be independent of most of the restraints, checks and punishments which are usually called into play against other public officers and he should be devoted to the conscientious performance of his duties. 155. In Subhash Sharma (supra), it has been rightly observed for Rule of Law to prevail, judicial independence is of prime necessity. 156. As we arc going to deal with this aspect in detail, while examining the most important question, concerning the primacy of the opinion of CJI under a separate heading, this aspect need not detain us any more in disposing of the rival contentions of the parties with regard to the principle of independence of judiciary. Separation of Judiciary from executive 157. By way of meeting the arguments advanced on behalf of petitioners with reference to Article 50, it has been submitted by Mr. Parasaran that Article 50 cannot be availed of with regard to the appointment of Judges to the Supreme Court and High Courts especially in the context of independence of judiciary. We shall now consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 50, we shall first of all go to its historical background. 161. Article 50 appears in para IV dealing with Directive Principles of State policy under the heading 'separation of Judiciary from Executive' and it reads as follows : Article 50 The State shall take steps to separate the judiciary from the executive in the public services of the State. 162. In the draft Constitution, there was no reference to this Directive Principle, but no being reminded of the important plank of the freedom movement, Article 39-A was introduced which read thus : 39A, The State shall take steps to secure that, within a period of three years from the commencement of this. Constitution, there is separation of the judiciary from the executive in the public services of the State. 163. The Drafting Committee in the amendment purposely had used the expression 'complete separation of the judiciary etc.'; the Special Committee, however, considered that the word 'complete' was unnecessary, and this word has accordingly been omitted. 164. Thereafter, the time limit of three years within which this directive was to be implemented was omitted at the final stage and Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter quoting various constitutional provisions, speaking about the privileges, rights and tenure of office of Judges of the higher judiciary while dealing with the concept of independence of judiciary described the role of Article 50 as follows : And hovering over all these provisions like a brooding omnipresence is Article 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the executive in the public services of the State. This provision, occurring in a chapter which has been described by Granvile Austin as the conscience of the Constitution and which embodies the social philosophy of the Constitution and its basic underpinnings and values, plainly reveals without any scope for doubt or debate, the intent of the Constitution makers to immunise the judiciary from any form of executive control or interference. 170. Chandrachud, J (as the learned Chief Justice then was) speaking for the majority did not by any means dissent from or dilute this basic tenet and he while making reference to various provisions of the Constitution to secure and safeguard the independence of the judiciary, referred to Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 50 while discussing the concept of independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values underlying Article 50 in safeguarding the independence of the judiciary. 175. The Power of appointment of Judges and the primacy to the opinion of the CJI thereof 176. The key and substantial questions that spring up for deep consideration among the various topical issues and that were hotly debated before us are, firstly, as to where the power of appointment of Judges of the Supreme Court and the High Courts is located; secondly, who is the final authority to make the appointments of those Judges; thirdly, whether there are any canalised guidelines in making the appointments; fourthly, whether the power of appointment of Judges vested in the constitutional functionaries is unfettered and uncircumscribed; and fifthly, whether the opinion expressed by the CJI who is one of the three principal constitutional functionaries during the mandatory consultation required by the Constitution has primacy over the opinion of the other constitutional functionaries ? 177. In a democratic polity, the supreme power of the State is sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to get the judiciary locked up in a power struggle either for social aristocracy or judicial imperialism of its own or for any vainglory of establishing judicial supremacy over and above all other constitutional functionaries but only to enjoy its legitimate right of demanding recognition of primacy to the opinion of CJI in the matter of appointment of Judges to the justice delivery system. Incontrovertibly, the CJI being at the helm of the judicial system is the principle protector of judiciary showing his keen insight into the practical problems of the judicial system from beginning to end. In fact, the CJI has pride of place in the Constitution. 181. In the backdrop of the above important role given to the judiciary and the obligation of the CJI as required under Articles 124(2) and 217(1) of the Constitution we shall examine the various questions which are posed for deep consideration. 182. The Indian judicial system being pyramidic in character is an integrated one in contradistinction to the dual system of USA and Australia. Our judicial system is vertically structured with this Court (Supreme Court) at the apex with the intervening layers consisting of subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under the Constitution of India 188. The fasciculus of Articles 124 to 147 in Chapter IV of Part V under the caption The Union Judiciary deals with the establishment and Constitution of Supreme Courts, the appointment of Judges and their powers, rights, jurisdiction and service conditions etc. etc., whilst Articles 214 to 231 in Chapter V of Part VI under the caption The High Courts in the State deal with the Constitution of High Courts, the appointment and conditions of the office of a Judge of a High Court, their powers, rights, jurisdiction, service conditions including the transfer from one High Court to another etc. etc. The power to appoint a Judge to the Supreme Court or to a High Court vests in the President under Articles 124(2) and 217(1) respectively. It is obligatory upon the President before making an appointment of a Judge to the Supreme Court other than the Chief Justice of India to consult the CJI. If the President, in his discretion, deems it necessary for that purpose to have consultation with such of the Judges of the Supreme Court and of the High Courts in the States he can do so as contemplated under Article 124(2). For appointment of CJI, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the manner in which the vacancy should be filled. Unless the Minister of Law and Justice considers that the recommendation of the Chief Justice of India should be accepted straight-away, he may consult such Judges of the Supreme Court and High Courts as he may deem necessary and, if after such consultation, the Minister of Law and Justice considers it desirable to bring any point to the notice of the Chief Justice of India or to suggest the consideration of the claims of any other person not recommended by the Chief of India, he may by personal correspondence convey his suggestions to the Chief Justice of India. On obtaining the views of the Chief Justice of India finally, the Minister of Law and Justice will, with the concurrence of the Prime Minister, advise the President of the selection. 192. In the case of appointment of Chief Justice and Judges of High Court under Article 217(1), the following procedure is made mention of in the second memorandum : When permanent vacancy is expected to arise in the office of Judge, the Chief Justice will as early as possible communicate to the Chief Minister of the State his views as to the person to be selected for permanent appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment of a High Court Judge, the opinion of the Council of Ministers of the State on whose aid and advice the Governor expresses his opinion is also taken into consideration in addition to the aid and advice of the Council of Ministers of the Central Government under Article 74. 195. A mounting dissatisfaction has been and is voiced against this existing method and strategy of selection through the process of which selecters have to man the superior judiciary. It is stated in the One Hundred Twenty-first Report of the Law Commission of India that This dissatisfaction stems from what is the idolised view of the members of the superior judiciary and what is available. In order to appreciate the fairness and reasonableness of this strident criticism, it is first necessary to determine what is expected of the superior judiciary individually and institutionally. 196. While the procedure for appointment of Chief Justices and Judges stood thus, a number of writ petitions were filed before this Court, one of which was S.P. Gupta, a Senior Advocate practicing in the Allahabad High Court. All the writ petitions had challenged the constitutional validity of a circular/letter dated M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, assumes the role of Lord of Lords and indeed acts as an overlord with the result that the right of making appointments even in defiance of the unanimous opinion of all the three constitutional functionaries including the CJI; that during the entire process, wholly concerning the judicial system, the CJI is reduced to passive by-stander and mute spectators instead of being an an active participant in process except being a consultee at an early initial stage and that the superior judiciary headed by the CJI who is the final arbiter of all constitutional questions is regrettably placed in that process under the 'despotism of an oligarchy'. According to them, the cherished principle of independence of the judicatory is being strangulated by this kind of recognition of the executive's superiority by keeping it on a high pedestal in preference to the judiciary and reducing the judiciary to an ignoble position. This ignominy, it is said, makes the judicial system suffer convulsions and struggle for its normal breathing in its own field, in the matter of appointment of Judges to man the judiciary itself. 199. Justifying the initiation of these proceedings, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd construction or drawing any strained inferences. 202. To put it differently, we are constrained to undertake this process of disposing these hotly debatable issues with an avowed object re-designing and re-juvenating the structure and the system of judiciary, if so warranted, so that the stability of the system for ages to come may have firm footrest an lumber support because if the system is weak-kneed or crippled or becomes impotent of sterile, it will lose its strength and authority. Resultantly, the other constitutional functionaries will try to prevail upon the justice delivery system as the saying goes, When the eagle of empire falls, each sparrow takes a feather . The judiciary is neither subservient to nor a 'cheerleader' of the executive or any other authority, however, powerful it may be. 203. It is worthwhile to recall the speech of Elmira in 1907 as a prelude for the discussion to be made in the ensuring part of this judgment. He stated, we are under the Constitution, but the Constitution is what the Judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. 204. Marshal, CJ with reference to ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose. But the proviso to Clause (2) of Article 124 makes it obligatory on the part of the President to consult the Chief Justice of India in case of an appointment of a Judge other than the Chief Justice. Thus, Article 124(2) envisages two kinds of consultation, one being discretionary on the part of the President and the other being mandatory. In case of appointment of a Judge of the High Court other than the Chief Justice, the constitutional functionaries are, (1) Chief Justice of India (2) The Governor of the State (3) Chief Justice of the High Court concerned 209. It is clear that under Article 217(1), the process of 'consultation' by the President is mandatory and this clause does not speak of any discretionary 'consultation' with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in Clause (2) of Article 124. The word 'consultation' is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many tough questions, one of them being, what is the meaning of the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Shorter Oxford English Dictionary as : Consultation: 1. The action of consulting or taking counsel together; deliberation, conference; 2. A conference in which the parties, e.g. lawyers or medical practitioners consult and deliberate. 3. The Action of consulting. 217. In Webster's Encyclopedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus : Consultation: 1. The act of consulting; conference. 2. a meeting for deliberation, discussion, or decision. Black's Law Dictionary defines the expression as under : Consultation: Act of consulting of conferring; e.g. patient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it. Stroud's Law Lexicon gives the following definition: Consultation: (New Towns Act, 196 (9 1) (Geo. 6.C.68), s 1(1), 'consultation with any local authorities 'Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;consultation' when used in legal sense has come up for judicial scrutiny before this Court as well as High Courts and foreign Courts on many occasions. We shall now recall a few of the decisions, interpreting that words. 222. The word 'consult' was subject of judicial scrutiny in Fletcher v. Minister of Town Planning (1947) 2 All E.R. 496 in which the learned Judge observed thus : The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one. In Madras District Municipalities Act, 1920, Section 3 read that for the purpose of election of Councillors to a Municipal Council, the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Government cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Court's views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or other and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. 224. In S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, it follows that the President must communicate to the Chief Justice all the materials he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possess and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system. However, consultation is different from consentaneity. They may discuss but may disagree, they may confer but may no concur. And in case, the consent of the Judge involved is not a factor specifically within the range of Article 222. 227. Chandrachud, J. (as the learned Chief Justice then was) in his separate judgment gave a homely analogy and stated that it may not be a happy analogy, but it is common sense that who wants to 'consult' a doctor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, 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 as 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 required to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Justice of India though it is entitled to great weight as the opinion of the head of the Indian Judiciary. It is clear from the language of Clause (1) of Article 217 that the appointment of a Judge of a High Court can be made by the President only after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India and, according to the interpretation placed by us, consultation within the meaning of this Article means full and effective consultations with each of the three constitutional functionaries after placing all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression 'after consultation with' must be determined in the constitutional context and conditions only by the true nature and object of such consultation. In support of this submission, he places reliance on Port Louis Corporation v. Attorney General 1965 AC 1111 at 1112 P.C. wherein Lord Morris has pointed out that the nature and object of consultation must be related to circumstances which call for it. 235. He continues to state that when no consultation is provided for with regard to any other constitutional office i.e. other than the judicial office, the consultation which is required in the Constitution with reference only to judicial office (as contrasted with other high ranking constitutional offices) shows that it does not bear the ordinary literal meaning but it means something more than merely seeking an advice. 236. According to him, the word 'consultation' especially in the context of the authorities constitutionally required to be consulted cannot be dissociated from the advice sought, and given, as a result of such consultation and that the requirement of prior consultation in respect of judicial offices in the Constitution was truly intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra Mohan's case (supra) were not appreciated by the learned Judges while dealing with Shamsher Singh's case who in his submission, have ignored the principle of harmonious construction which was articulated in K.M. Nanavati v. State of Bomaby (1967) 1 SCR 97. According to him, the judgment in Gupta's case may be regarded as per incuriam. He articulates that the expression 'consultation' is itself flexible and in a certain context capable of bearing the meaning of 'consent' or 'concurrence.' 240. According to Mr. Kapil Sibal, the learned senior counsel, there is no mention of Government in Article 124(2) but this Article refers only to the President which means the President acting with the aid and advice of the Government, namely, the Council of Ministers. He brought to our notice certain observations of Bhagwati, J in Gupta's case firstly, It is obvious on a plain reading of Clause (2) of Article 124 that it is the President which in effect and substance means the Central Government which is empowered by the Constitution to appoint Judges of the Supreme Court ; secondly the power of appointment resides solely and exclusively in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ib moved the following amendment to Article 103: (2) Every Judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India, and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the Judges of the Supreme Court and the Chief Justices of the High Courts in the States and every Judge of the Supreme Court shall hold office until he attains the age of sixty-eight years. 244. Similarly, Mr. Mahboob Ali Baig Sahib proposed the following amendment : That in the first proviso to Clause (2) of Article 103, for the words 'the Chief Justice of India shall always be consulted' the words 'it shall be made with the concurrence of the Chief Justice of India's be substituted. 245. To the draft Article 193 with respect to the appointment of High Court Judges, Mr. B. Pocker Sahib suggested the following amendment : (1) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endments to Articles 103 and 193 of the draft Constitution Mr. Parasaran has recalled the reply of Dr. B.R. Ambedkar while winding up the debate on this topic concerning judiciary which reads thus : With regard to the question of concurrence of the Chief Justice, it seem to me that those who Advocate that proposition seem to reply implicit both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition. 249. According to Mr. Parasaran, the entire debate on this topic in the Constituent Assembly, the rejection of the proposed amendments and the texture of the reply given by Dr. B.R. Ambedkar, in this context, are indicative of the fact that the framers of the Constitution de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 251. The learned Attorney General projects the view expressed by Pathak, J (as the learned Chief Justice was) in his minority judgment. According to him, the circulars as well as the actual practice of the working of the system clearly establishes that the Chief Justice's views in the evaluation by the President should not be treated as one of parity but should be given greater weight. Finally, be emphasizes that the views expressed in Gupta's case are neither basically wrong nor intrinsically defective so as to bring about any radical changes and devise a new method. 252. The controversy that arises for scrutiny from the arguments addressed boils down with regard to the construction of the word consultations. 253. Incontrovertibly, our Constitution is structured with a wealth of influential and choice words, measured phrases and expressions the real meaning and message of which are sometimes missed and on many occasions, are hidden or unforeseen. However, the implication, relevance, signification, spirit and core of that word, as used in the Constitution are beyond the range of the interest of a layman. 254. In Chapter 4 of the Treatise titled, The Loom of Langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted meaning that the currency of the word intends to convey. 260. In the above background of the constitutional scheme, we shall now examine the relevance and significance of consultation with the CJI in the context of appointment of Judges to the Supreme Court and High Courts. In that context, the derivative meaning of the word would depend not merely on its ordinary lexical definition but greatly upon its contents according to the circumstances and the time in which the word or expression is used. Therefore, in order to ascertain its colour and content, one must examine the context in which the word is used. 261. The word 'consultation' is used in the context of appointment of Judges to the Supreme Court under Article 124(2) and to the High Courts under Article 217(1). Though such a consultation is not constitutionally required in the case of appointment of other constitutional appointees, which we have indicated and itemised in the preceding part of this judgment. In Gupta's case, there is a consensus of opinion that consultation does not mean concurrence. In that case, Bhagwati, J in his leading judgment has gone to the extent of holding the words 'Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view taken in Srivastava's case (supra) as regards the non-observance of Article 323, is imported in the first proviso to Article 124(2) or in Article 217(1), the answer would be that such appointment is nevertheless valid notwithstandings the violation of the first proviso. A different conclusion has, however, been taken in Sankal Chand presumably being prompted by the need for judicial independence under the parallel provisions under Article 222(1) as regards the transfer of a High Court Judge. The view taken in that case by Chandrachud, J is : if he proposes to transfer a Judge he must consult the Chief Justice of India before transferring the Judge. That is the nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer of a High Court Judge to another High Court 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 Presi dent consults the Chief Justice of India. 265. Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and former Attorney General of India has expressed his deep resentment in the Fourteenth Report of the Law Commission chaired by him, over the existing mode and method of selection of judges, the motivation for their selection, the external forces and influences working on the method and selection of candidates having a bearing on judicial administration. In fact, the Fourteenth Law Commission Report emphasising the importance of the opinion of the Chief Justice of India recommended the use of the expression 'concurrence' instead of 'consultation' thought it agree with the use of the expression 'consultation' so far as Governor of the State is concerned. The relevant portion of Article 217 in the Light of the Amendments suggested read as follows : 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 Governor or the State and with the concurrence of the Chief Justice of India, and in the case of appointment of a Judge other than the Chief Justice on the recommendation of Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t once privileged and restricted. They have to present a continuous aspect of dignity and conduct. Vide Parliamentary Debates (Hansard) House of Commons Debates dated 23.3.54 Vol. 525 Cols. 1061-62. 275. In 'The Role of the Trial Judge in the Anglo-American Legal System 50 ABAJ 125, 127 (1964), Chandler has observed that the Judges should not only know the laws of procedure and evidence he must be either to use them functionally in making adroit and incessive rulings. 276. It is befitting, in this context, to describe in short, an outstanding and distinguished Judge, in the words of Shakespears in 'The Merchant of Venice' reading, A Daniel come to judgment yea, a Daniel 277. The crucial question that follows for deliberation is who is to honestly and realistically evaluate the required qualities under the appointive system and select Daniel to sit in the Solomon's chair . Is it the CJI or the executive who has to undertake this process of evaluation and selection? 278. Unfortunately, we have no systematic set of criteria to evaluate or rate the desirable qualities of the selectees to the judicial office. There are global reactions that there are so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse of Decimus Junius Juvenalis, a Roman satirist who while denouncing the vices of imperial Rome stated thus : Sed quis custodiet ipsos Custodes? (But who is to guard the guards themselves?) 281. One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive or other services. In a recent judgment in All India Judges' Association and Ors. v. Union of India and Ors. (1993) 4 JT 618, rendered by a three-judges Bench presided over by M.N. Venkatachaliah, CJ and consisting of A.M. Ahmadi and P.B. Sawant, JJ, the following observations are made : The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute three pillars of the State, that is intended to be conveyed is that the three essential functions of the State are entrusted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the United Kingdom, namely, Supreme Court of England and Wales consisting of the Court of Appeal, the High Court of Justice and the Crown and to the status accorded to the Lord Chancellor as the President of the Supreme court as embodied in the Supreme Court Act of 1981. See Halsbury's Statutes Fourth Edition Volume 11 Page 756 to 865. Is not necessary to swell this judgment by referring to the detailed procedure of appointment of Judges made in some other countries such as Canada, France, West Germany, Japan and Australia etc. where also, of course, the executive is exclusively vested with the power of appointment of Judges. 283. True, the power of appointment of Judges in many democratic countries is vested in the executive. Though it is said that the Judges of the federal judiciary in USA are nominated and appointed by the President, in fact, that process itself is a very difficult and lengthy one. To put in short, the nominee of the president of USA to the Federal Supreme Court has to appear before the Senate Judiciary Committee for 'confirmation hearing' which usually extends over for a few days. During the process of hearing, the nominee is subjected to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itical selection on the quality of judicial personnel and developed the nonpartisan ballot as a means of taking the judges out of politics. 287. After long experience with judicial selection by merit in Mississippi, the plan by name Missouri Plan was adopted in 1940. Under that plan, the nominating commissioners become important for they set the patter of the judicial appointments. According to that plan, when a vacancy occurs, the names of all applicants are submitted to the proper judicial commission, generally by letter from the applicant or some friend who wishes to present the application for consideration. The Commission encourages the filing of applications since there is no restriction on the number of applicants. The Commissioner carefully screen the applications to determine their qualifications and eligibility and select and submit to the Governor, a panel of three names, all of whom are recommended as being competent and well qualified for judicial office. Thereafter, the Governor appoints one of the nominees to judicial office from the panel. This, under the Missouri Plan, the judiciary in Missouri had moved from political dependence to judicial independence. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to be made by the President, without any kind of reservation of limitation, what is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to make subject to the concurrence of legislature is also not a very suitable provision. 291. It is not necessary to expatiate on this topic any more and this aspect need detain us from proceeding further. 292. Nevertheless, we have, firstly to find out the ails from which our judicial system suffers, secondly to diagnose the root cause of those ailments under legalistic biopsies, thirdly to ascertain the nature of affliction on the system and finally to evolve a new method and strategy to treat and cure those ailments by administering and injecting a 'new invented medicine' (meaning thereby a newly developed method and strategy) manufactured in terms of the formula under Indian pharmacopoeia (meaning thereby according to national problems in a mixed culture etc.) but not according to American or British pharmacopoeia which are alien to our Indian system though the system adopted in other countries may throw some light for the development of our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal appointments, 'consultation' is required only to the judicial office in contrast to the other high ranking constitutional offices. The prior 'consultation' envisaged in the first proviso to Article 124(2) and 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior courts. (3) The 'consultation' by the President is a sine-qua-non or a condition precedent to the exercise of the constitutional power by the President to appoint Judges and this power is inextricably mixed up in the entire process of appointment of Judges as an integrated process. The 'consultation' during the process in which an advice is sought by the President cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity. (4) The context in which the expression shall always be consulted used in the first proviso of Article 124(2) and the expression shall be appointed after consultation deployed in Article 217(1) denote the mandatory character of 'consultation', which has to be and is of a binding character. (5) Article 124 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supremacy in the ecclesiastical and temporal affairs, the CJI being the highest judicial authority, has a right of primacy, if not supremacy to be accorded, to his opinion on the affairs concerning the 'Temple of Justice.' It is a right step in the right direction and that step alone will ensure optimum benefits to the society. 296. No doubt, it is true that under Article 217 the President has to consult three constitutional functionaries, namely (1) the CJI; (2) the Governor of the State; and (3) in case of an appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned. In the matter or appointment of Judges to both of the Supreme Court and the High Courts, it is the President who by warrant under his hand and seal has to make the appointment. In discharging the constitutional functions under Article 124(2), 217(1) and 222, the President acts on the aid and advice of the Council of Ministers with the Prune Minister at the head and exercises his functions in accordance with such advice as contemplated under Article 74(1). Similarly, the Governor in the discharge of his constitutional duties acts on the aid and advice of the Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. In case, the President has got some objection to the proposed course of action on the advice of his Ministers, the only course open to him is to require the Council of Ministers to reconsider such advice either generally or otherwise. But if the same opinion is reiterated by the Ministers, the President has no other option except to accept the advice of the Ministers. Krishna Iyer, J adverting to that position in Shamsher Singh v. State of Punjab (supra) said : Does this reduce the President, under the Indian Constitution, to a figurehead? Far from it. Like the King in in England, he will still have the right 'to be consulted, to encourage and to warn'. Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry's first thoughts. The President can state all his objections to any proposed course of action and ask his Ministers in Council, if necessary, to reconsider the matter. It is only in the last resort that he much accept their final advice. The President of India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy democracy because if the judicial system is crippled, democracy will also be crippled. 302. In practice, whenever the Council of Ministers both at the Central and State level, as the case may be, plays a major role in its self-acclaimed absolute supremacy in selecting and appointing the Judges, paying no attention to the opinion of the CJI, they may desire to appoint only those who share their policy performances or show affiliation to their political philosophy or exhbibit affinity to their ideologies. This motivated selection of men and woman to the judiciary certainty undermines public confidence in the rule of law and resultantly the concept of separation of judiciary from the executive as adumbreatcd under Article 50 and the cherished concept of independence of judiciary untouched by the executive will only be forbidden fruits or a myth rather than a reality. In that situation, the consultation with the CJI will be an informal one for the purpose of satisfying the constitutional requirements. As it has been pointed out in Gupta's case that the judiciary may be the weakest among the constitutional functionaries, for the simple reason that it is not possessed of the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitratOrs. The answer would be in the negative. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace. By going through various Law Commission Reports (particularly Fourteenth, Eightieth and One Hundred and Twentyfirst), Reports of the Seminars and articles of eminent jurists etc., we understand that radical change in the method of appointment of Judges to the superior judiciary by curbing the. executive's power has been accentuated but the desired result has to been achieved even though by now nearly 46 years since the attainment of independence and more than 42 years since the advent of the formation of our constitutional system have elapsed. However, it is a proud privilege that the celebrated birth of our judicial system, its independence, mode of dispensation of justice by Judges of eminence holding nationalistic view stronger than other Judges in any other nations, and the resultant triumph of the Indian judiciary are highly commendable. But it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of the scrutiny by the CJI and the Central Government. In case, the State government agrees with the proposal of the Chief Justice of the High Court but the CJI disagrees on any ground then what would be the outcome of that proposal? In such a situation, if the consultation of the CJI is considered to be an informal one then as per the dictum laid down in Gupta's case, the Central Government if it agrees with the Chief Justice of the High Court and the State Government concerned can advise the President regardless of the opinion of the CJI. Even in extreme cases where the Chief Justice of the High Court initiates the proposal but it is turned down by the State Government and the CJI, even then the Central Government on the dictum laid down in Gupta's case can approve that candidate and recommend to the President for appointment. It is true that while recommending a candidate for the higher State judiciary, the Chief Justice of the High Court has the advantage of proximity in evaluating the calibre and legal ability of the candidate. However, the CJI before whom the opinion of the Chief Justice of the High Court as well of the State Government is placed with all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve process by taking into account the views of two senior-most Judges of the Supreme Court and the views of any other Judge or Judges of the High Court whose opinion is likely to be significant in adjudging the suitability of the candidate, as pointed out by my learned brother, J.S. Verma, J in his separate judgment. Similarly in matters relating to appointment of Judges to the High Courts, it would be better if the Chief Justice of the High Court concerned forms his opinion on a consultative process by ascertaining the views of at least two of the senior-most Judges of the High Court and such other Judges, whose opinion is likely to be significant in the formation of his opinion. The CJI whilst forming his opinion on the recommendation made by the Chief Justice of the High Court concerned for appointment of a Judge to the High Court, may take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court, as pointed out by my learned brother, J.S. Verma, J. This consultative process is neither opposed to the constitutional provisions nor stands in the waty of the President consulting, in his discretion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposal for judgeship is to be made only by the CJI whose opinion in this matter, is entitled to primacy or the Chief Justice of the High Court concerned non else and that the procedure in vogue alone is a healthy practice. Therefore, at the forefront we may emphatically say that the Central or State Government shall not have any right of directly initiating the name of any candidate for judgeship bypassing the CJI or Chief Justice of the State and that if such a right of initiation by the Government is recognised and accepted regarding the judicial appointments then it will not be violative of the well accepted long standing practice but also destructive of the independence of the judiciary. 314. It will be pertinent, in this connection, to take note of the fact that recruitment to the judiciary at the level below the District Judges is either through a State Public Service Commission which is an independent body or through an entrance test organised by the High Court. The recruitment at the level of District Judges is made by the Governor in exercise of his powers under Article 233 of the Constitution which power of appointment is conditioned by the obligation to consult the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us candidates belonging to all sections of the society not by any selective or insular group. (4) In the normal or accepted way of making such suggestion regarding the names of the candidates by the Chief Justice even after consulting his senior colleagues, he may not have sufficient opportunity to evaluate the merit and suitability of the most deserving and worthy legal practitioners other than those who have appeared before him or whose names alone have brought to his notice by his consultees. It is especially so in cases where some of the suitable and fit persons are specialising in some other branches of law and who may not have any chance of appearing before the Chief Justice or his consultees. But the Government may be in a position to come to know about those candidates from other source or through its powerful machinery. (5) There may be most meritorious and suitable candidates practicing in forums other than the the High Courts. Therefore, it may not be possible for the Chief Justice of a State to know the legal ability and suitability of those candidates either personally or even form his consultees. In such cases, the Government may be in a position to know the can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch sermons and preachings or anyone enjoys any immunity therefrom, Regretably, it is a fact of life that some have followed such homilies more in the breach than in their observance. Even today, there are complaints that generations of men from the same family or caste, community or religion, are being sponsored and initiated and appointed as judges, thereby creating a new theory of judicial relationship. 319. In this connection, it is worthy to note the view of Sardar Vallabhbhai Patel in his letter of the 8th December 1947 addressed to the Governor General of India regarding a memorandum issued on the procedure for filling vacancies in His Courts. It reads thus : Purity of motives is not the monopoly of a Chief Justice nor nepotism and jobbery the vices of politicians, only. 320. As rightly pointed out by Dr. B.R. Ambedkar, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have. 321. The Eightieth Report of the Law Commission on this aspect of matter has stated thus : Criticism has occasionally been levelled that the selection has not been proper and has been induced by ulterior considerations. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... _________________________________________________________ 8. Himachal Pradesh 1 ______________________________________________________________________ 9. Jammu Kashmir ______________________________________________________________________ 10. Karnataka 2 2 ______________________________________________________________________ 11. Kerala 1 1 ______________________________________________________________________ 12. Madhya Pradesh ______________________________________________________________________ 13. Madras 2 1 ______________________________________________________________________ 14. Orissa 1 ______________________________________________________________________ 15. Patna (Do not maintain official record) 1 ______________________________________________________________________ 16. Punjab Haryana 1 ______________________________________________________________________ 17. Rajasthan 1 1 ______________________________________________________________________ 18. Sikkim ______________________________________________________________________ TOTAL 13 7 15 ______________________________________________________________________ Statement in rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... _________ __ 18. Sikkim 3 1 2 1 _______________________________________________________________________ __ TOTAL 512 443 69 289 154 12 7 42 _______________________________________________________________________ __ Supreme Court 26 23 3 1 N.A N.A. _______________________________________________________________________ __ 326. On the basis of the above statements, as on 1.1.1993, out of 18 High Courts in the country, 12 High Courts are without a single Judge belonging to Scheduled Caste and 14 High Courts are without a single judge from Schedule Tribes. The backward classes are also not better placed and only 6 High Courts are shown to have Judges belonging to OBCs and 12 High Courts are without a single Judge belonging to the OBCs. 327. As per the second statement, as on 20.5.1993, out of the total strength Judges in the whole of India in the 18 High Courts, there are 13 Judges belonging to Scheduled Castes, 7 Judges belonging to Scheduled Tribes and only 15 women Judges. Eleven High Courts are unrepresented by any single Judge of Scheduled Castes, 13 High Courts are unrepresented by Scheduled Tribes and 5 High Courts are unrepresented by women Judges. 328. Though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to twenty-five by Act 22 of 1986. Consequent upon the periodical revision, at present, the number of puisne Judges stands at twenty five. Article 216 which deals with 'Constitution of High Courts' reads : 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. 334. Earlier to 1.11.1956 there was a proviso to this Article which read thus : provided that the Judges so appointed shall at no time exceed in number such maximum number as the President may from time to time, by order fix in relation to that Court . This proviso was omitted by the Constitution (Seventh Amendment) Act of 1956. The legislative power to constitute a High Court belongs to Parliament and it falls under Entry 76 List I of Seventh Schedule. The fixation of Judge strength in each of the High Court is no doubt an executive function entrusted by Article 216 of the Constitution as a mandatory obligation to the President, that is the Government of India. Hitherto, the existing procedure is that the Government of India has to decide in exercise of its judgment as to what shall be the strength of Judges in each High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering some 'illustrative question', posed for its considerations, the Commission concluded that the report will invoke sufficient parliamentary, public and specialist discussion in order to assist a viable and comprehensive man power planning for the Indian Judiciary. 337. Our Court system has a pyramidal structure with trial courts at the base and the Supreme Court at the apex. Though normally the appellate and revisional jurisdiction of the High Courts and finally the appeals to the Supreme Court on grant of special leave or on certificate are on a hierarchical basis, Parliament has by Section 46 of the Constitution (Forty-second Amendment) Act, 1976 has inserted Articles 323-A and 323-B in.Part XIV A with effect from 3.1.1977, thereby excluding the jurisdiction of all courts, except that of the Supreme Court under Article 136 with respect to the disputes or complaints referred to in Clause (1) of Article 323-A and with respect to all or any of the matters falling within jurisdiction of the Tribunals for other matters, enumerated under Article 323-B. Appeals respecting all other matters arising out of the judgments/orders of the Special or Designated Courts have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t infrastructure available or a request to wait for the next phase programme. Invariably, a Section Officer or Superintendent or an Additional Secretary at his desk or the Secretary concerned in the Secretariat with total ignorance of the aspects of judicial administration decide the requirement of the Judges strength. 'Financial implication' which is usually a reason for turning down the proposal of the CJI and the Chief Justice of the High Courts as put forward by the learned Attorney General in his written submission cab never serve as a justifiable cause. Similarly, the Law of Diminishing Returns: can have no application in the matter of disposal of case. It is deplorable that sometime courts are established but without presiding officers. The High Courts are plagued by intractable backlog and all predictions forecast the increase of work-load. In our considered opinion, unless there is an increase of Judge strength, which alone will deliver long range assistance, the superior courts cannot fulfill their national duties. 341. The litigation explosion stares us in the face and unless it is dealt with by adopting radical measures, the situation is likely to go out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and High Courts are overworked. The nonfilling of vacancies for months, sometime even years together, impose a heavy unbearable and intolerable workload on those who are in office. In fact, Bhagwati, CJ was provoked to say in his Law Day Speech on 26th November 1986 that failure on the part of Government of fill in the vacancies has operated as an act of cruelty to the existing Judges to carry on under this unbearable burden. 345. In Subhash Sharma's case (supra) this Court realising this aspect of the matter has expressed its opinion in the following words : For its sound functioning, it is, therefore, necessary that there must be in efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength. 346. A litigant is not interested in making an analysis of the causes of delay, but he thinks in his own way that courts have caused the delay resulting in criticism galore, occasionally pungent, from different sections of the people not only against the present day justice system, but also against the personnel manning the same. The restructuring of the Court system is an encouraging part of the reform of the just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be to the legislature and not to the Court. All that the Court can do is to express the hope that the Government of India will periodically review the strength of judges in each High Court and appoint as many judges as are found necessary for the purpose of disposing of arrears of pending cases. 349. But Venkataramiah, J (as the then was) gave a dissenting opinion concluding thus : For the reasons given above, I am of the view that the Union of Government, which has the responsibility of appointing sufficient number of Judges in every High Court should be directed to review the strength of permanent Judges in every High Court, to fix the number of permanent Judges that should be appointed in that High Court on the basis of the workload and to fill up the vacancies by appointing permanent Judges. While making these appointments the Union Government should first consider the cases of additional Judges who are now in office for appointment as permanent Judges in those vacancies. A writ in the above terms shall be issued to the Union Government. 350. The learned Judge, therefore, ruled that mandamus could be issued to the Government to review the strength of permanent Judges to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority opinion in S.P. Gupta's case insofar as it is in conflict with the view relating to the primacy of the opinion of the Chief Justice of India in matters of appointments, transfer and the justiciability of these matters as well as in relation to Judge-strength stands over-ruled. 356. In addition to the above, the Government which is accountable to the people, should have the right of suggesting candidates to the concerned Chief Justice for consideration but the government has no right to directly send the proposal for appointments bypassing the Chief Justice concerned. 357. The suggestions made by the Government whether Central or State, should be routed only through the Chief Justice of India in the matter of appointment of a Judge to the Supreme Court and Chief Justice of the High Court in the matter of appointment of a Judge to the concerned High Court, whose opinion with regard to the acceptance or disapproval of the said proposed candidates by the Government on the materials placed before him, will be decisive of the matter. Though appointment of Judges to the superior judiciary should be made purely on merit, it must be ensured that all sections of the people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by an authoritative pronouncement of this Court. Immediately after the circular was issued it was engulfed in a serious controversy and passionate appeals to protect the independence of the judiciary were made from different quarters as it was generally assumed to be an attempt on the part of the executive to trifle with judicial independence. The first salvo was fired by Shri Iqbal Chagla, an advocate practising in the Bombay High Court, by filing a writ petition wherein he impleaded the Union Law Minister as respondent No. 1 and the Union of India as respondent No. 2 with 10 other Additional Judges of the High Court. A learned Single Judge of the High Court admitted the Writ Petition, issued rule and granted interim relief restraining respondents Nos. 1 and 2 from further implementing the said circular letter. Two other advocates S/Shri V.M. Tarkunde and J.L. Kalra, practising in the Delhi High Court, also filed Writ Petitions questioning the legality and validity of the disputed circular and sought similar and certain other incidental reliefs. The fourth Writ Petition was filed by Shri S.P. Gupta an advocate practising in the Allahabad High Court. It seems that he filed a Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he main issues which we need to notice were (i) whether the Court can issue a mandamus for fixation of the strength of judges of the High Court under Article 216 of the Constitution, (ii) whether Article 222(1), properly construed, covered consensual transfers only (iii) the nature of 'consultation' with the Chief Justice of India which must precede any transfer effected or any transfer policy finalised under Article 222(1), (iv) whether among the opinions of the constitutional consultees under Article 217(1), primacy must be accorded to the opinion of the Chief Justice of India, and (v) whether the circular in question held out a direct threat to the concept of judicial independence, inasmuch as, it purported to secure the consent of the Additional Judges and those whose names were already proposed for appointment as High Court Judges on pain of their being discontinued or dropped from consideration if they failed to consent to their transfer. Certain other incidental issues were also considered but it is unnecessary to notice them as they have no bearing to the points raised before us. 367. Before we set out the conclusions recorded on the issues of great importance pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the power of transfer conferred on the President. Bhagwati, J. however stuck to his view in the Union of India v. Sankal Chand Himatlal Sheth and Anr. 1978 (1) SCR 423 : AIR 1977 SC 2328, that the requirement of consent of the concerned judge must be read in Article 222(1) to protect the independence of the judiciary. Even there the majority did not subscribe to this view as it resulted in granting a veto to the concerned judge. While upholding the non-extension of Shri Justice Kumar after the expiry of his term and the transfer of Chief Justice Shri K.B.N. Singh the court held by a majority that a mandate could not be issued to the President for the fixation of Judge strength by invoking Article 216 of the Constitution. There was unanimity on the point that the Government's claim that the Constitution empowered it go grant short term extensions of three months or six months was not well founded. The Court, however, ruled that such short term appointment could be countenanced only if there existed strong reason for believing that the services of the Additional Judge would not be required for two years or that there existed compelling reasons which necessitated a short term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored. Three Writ Petitions Nos. 13003 of 1985,1303 of 1987 and 302 of 1989 came to be filed under Article 32 of the Constitution by Shri Subhash Sharma, a practising Advocate of this Court, the Supreme Court Advocates on Record Association and Honorary Secretary, Bombay Bar Association, respectively, seeking a mandamus commanding the Union of India to fill up the vacancies in the Supreme Court and several High Courts and certain other incidental reliefs. These writ petitions were clubbed together as common pleas were raised and the reliefs sought were more or less similar in nature. In response to the rule issued, the Union of India entered an appearance and contended that the petitions were not maintainable as the question of filling up the vacancies in the superior courts was not justiciable as held in S.P. Gupta's case. This objection raised by the learned Attorney General was repelled by the Court drawing a distinction between fixing of Judges strength or selection of judges and filling up of existing vacancies. Since the relief claimed belonged to the latter issue the matter in issue was not concluded by the ratio in S.P. Gupta's case. With the Change in Government at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration of the majority view in S.P. Gupta's case on the aforesaid two points while the Union of India and the States contended that the majority view in the case was correct and did not call for reconsideration. 369. The battle lines between the two contesting groups are clearly drawn. The main weapon in the armory of the petitioners and their allies is 'protection of the independence of the judiciary'. The battle cry is that the independence of the judiciary is imperilled by the majority view in S.P. Gupta's case which in effect has surrendered the independence of the judiciary to the executive on the platter in flagrant violation of the doctrine of independence enshrined in Article 50 of the Constitution. Counsel after counsel tried to impress upon us that if the majority view in S.P. Gupta's case is allowed to stand there is a real danger to the concept of judicial independence which is an article of faith and a basic feature of our Constitution. Although they used different instruments they played the same tune of judicial independence being in peril. They travelled by different routes but their destination was the same, namely, primacy must rest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the judiciary and make an autonomous body wholly independent of the executive in its own field. Since the concept of judicial independence is inextricably linked or connected with appointments to judicial offices, it is essential that the process of appointments to the Supreme Court and the High Courts should be finalised as per the opinion given by the judicial wing. The process of consultation, it must therefore be understood, was introduced to subserve this objective of the Constitution and hence the provisions cannot be given a narrow or literal meaning. This is so because the Constitution has not used the word 'consultation' in the limited sense of interaction between high constitutional functionaries i.e. the President and the Chief Justice of India, but in the wider sense of seeking binding advise for making the appointment. The requirement of prior consultation is not an idle formality but a constitutional obligation intended to operate as a restriction or limitation on the President's power of appointment. The link between the duty to consult and the ultimate exercise of power to appoint is inextricable connected with the advise received from the consultee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He, therefore, submitted that if the executive fails in the discharge of its duty or obligation under Article 216 of the Constitution, a writ of mandamus can certainly issue commanding it to perform that duty for otherwise Article 216 will be rendered a dead letter. He, therefore, prayed for an appropriate mandamus to issue as prayed. Other learned Counsel Messrs. Kapil Sibal, P.P. Rao, R.K. Garg and S.P. Gupta reinforced the submissions of Mr. Nariman adding their own flavour and emphasis. Mr. Shanti Bhushan and Mr. Ram Jethmalani sought to reach the same destination through a different route. 371. Shri Kapil Sibal submitted that in order to preserve and protect the concept of an independent judiciary as enshrined in Article 50 of the Constitution, it is essential that consultation must be institutional in the sense that the Chief Justice of India must before expressing his view consult two or three of his senior colleagues who can enlighten him on the merit of the recommendation made by the Chief Justice of the concerned State. Such a view when expressed would be the view not merely of the Chief Justice of India but of the judicial family as such; it must, therefore, carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for performance of the duty enjoined by Article 216 of the Constitution cannot be denied on the specious plea of want judicially manageable standards for controlling and guiding the discretion of the executive. 372. Mr. Shanti Bhushan pointed out that prior to the 42nd Amendment of the Constitutional in 1976, there was no express provision in the Constitution which provided that the President shall be bound by the advise of the Council of Ministers. Even after the insertion of the expression 'shall' in Article 74(1) the President is bound by the advice only in relation to the exercise of executive functions and not other constitutional obligations or duties. By Article 53 the executive power of the Union is undoubtedly vested in the President which he must exercise either directly or through officers subordinate to him in accordance with the Constitution. Article 73 indicates the scope of the executive power of the Union which broadly extends to matter in respect whereof Parliament is empowered to make laws i.e. matters enumerated in List I and III of the VII Schedule to the Constitution. Since matters pertaining to the appointment of Judges of the Supreme Court and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll become a teasing illusion and the fundamental rights a mirage. He, therefore, shared the view of Mr. Nariman that if the executive fails in the performance of its duty under Article 216 and betrays administrative indifference or perversity, it is the bounden duty of the court to pull up the executive and command it to perform its Constitution obligation. He concluded by saying that the setting up of a National Judicial Commission which was contemplated by a constitutional amendment may provide the answer but till that materialises court must authoritatively lay down that the opinion of the Chief Justice of India shall be binding on the President. 373. On behalf of the Union of India Mr. K. Parasaran submitted that while independence of judiciary is indisputably one of the cardinal principles of the Constitution it is only a means for achieving a laudable end, namely, dispensation of justice. In all democratic countries, the concept of independence of the judiciary is generally understood to mean independence from all external and internal pressures, including executive and legislative influence, but that has never been understood to mean that the head of the State is rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot possess the qualification prescribed by Article 217(2). Counsel, therefore, submitted that the question of independence of the judiciary is a post-appointment guarantee and does not figure at the pre-appointment stage. He pointed out that in all democratic countries including the United Kingdom, the United States of America, Australia and Canada the appointment of Judges to the superior courts is in the hands of the executive and not the judiciary. So far as our Constitution is concerned, it has taken a middle course and while conferring the power on executive it as conditioned it by the requirement of prior consultation with certain constitutional functionaries to ensure that a proper selection is made on merits and the margin of error is minimised. In support of this submission he also invited our attention to the speech of Dr. Ambedkar and other members of the Constituent Assembly and laid stress on the fact that the amendment proposed by Shri Pocker Sahib to provide for the 'concurrence' of the Chief Justice of India instead of mere 'consultation' was defeated which, said he, was a positive indication of the intention of the Constituent Assembly and militates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed the view that the Chief Justice of India holds a unique position under the Constitution insofar as the India Judiciary is concerned and hence his opinion is entitled to great weight. So the executive cannot appoint a person whose appointment is opposed by the Chief Justice of India and similarly the Chief Justice of India cannot expect the executive to appoint a person whose candidature does not meet with executive approval. In other words the executive wing is not bound to appoint a person whose name is cleared by the judicial wing, including the Chief Justice of India, for good and valid reasons but it cannot appoint a person who has not been cleared by the Judicial wing. On the question of fixation of the judge-strength he contended that the Chief Justice of the High Court and the Chief Justice of India are best suited to take a decision in this behalf and made a recommendation to the President who should invariably accept the same. In his view, therefore, the majority view in S.P. Gupta's case needs to be modified or explained as above. 374. Mr. Milon Banerjee, the learned Attorney General, was present in the Court on 5th March, 1993 when the aforesaid petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds positively to the views of the Chief Justice of India cannot be misconstrued to concede the right of veto to the Chief Justice of India in the matter of appointment of a candidate or refusal to appoint a candidate. He submitted that the President is under an obligation to act on the aid and advise of the Council of Ministers and he cannot depart from the advice and accept the advice of the Chief Justice of India if there is a conflict. He submitted that in our constitutional scheme the question of primacy over other constitutional functionaries does not arise as there is no hierarchy amongst the consultees and such a view would be inherently inconsistent with the very concept of consultation. However, if by primacy it is meant that greater weight should be attached to the view of the Chief Justice of India in the event of a difference of view amongst the consultees, this interpretation may perhaps be acceptable. In this connection, he submitted that the view of Pathak, J. in S.P. Gupta's case can be adopted. Lastly, he submitted that it two views are reasonably possible and he earlier decision has made a choice in favour of one this bench should not disturb that choice by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consultees under Articles 124(2) or 217(1) the view of the Chief Justice of India may ordinarily prevail unless there are strong, cogent and compelling reasons to disapprove of the same. But that opinion cannot be held to be binding on the executive. In other words, he submitted, that even if the court rejects his submission, at best the view of Pathak, J. in S.P. Gupta's case on the question of primacy of the Chief Justice of India can be adopted. 376. A word of caution before we proceed further. The Constitution is what the Judges say it is. That is because the power to interpret the Constitution vests in the Judges. A heavy responsibility lies on the Judges when they are called upon to interpret the Constitution, the responsibility is all the more heavier when the provisions to be construed relate to the powers of the judiciary. It is essential that complete objectivity is maintained while interpreting the Constitutional provisions relating to the power of the judiciary vis-a-vis the executive in the matter of appointments to the superior judiciary to avoid any feeling amongst the other constitutional functionaries that there has been usurpation of power through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility, we may now proceed to deal with the questions posed for our determination. 377. The concept of separation of powers is a well known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but is does provide for distribution of powers to ensure tha one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependence, neither the Crown nor the Parliament was prepared to concede it to the colonies. In 1759 when the Pennsylvania Assembly enacted a law requiring an address of the Assembly for removal of a Judge, the Privy Council disapproved of the measure as an attempt to make the judiciary dependent on the Colonial Assembly. Since the British Parliament was supreme and could enact a law concerning colonies which would not be subject to court scrutiny, the unrepresented Americal colonists suspected British intentions. Hence when they attained freedom they favoured total separation of all the three branches of government so that each would operate as a check on the exercise of power by the other. The American concept of judicial independence, therefore, differs somewhat from the British concept. Our founding fathers were aware of these developments and, as we shall presently show, they steered a middle course. 379. Before we deal with our constitutional scheme regarding appointments to the superior judiciary, it would be advantageous to bear in mind the practice followed in Britain and other Common Law Systems as well as the United States. In Britain the Lord Chancellor enjoys a uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple. It is obvious, therefore, that in selecting the candidate for nomination to the Supreme Court, political and ideological views of the candidate are considered relevant and an attempt is made to give the Court a representative look so that the Court derives legitimacy in the eyes of the people. The nomination made by the President must of course be confirmed by the Senate. The Senate too in the course of its deliberations tries to ascertain the nominee's ideological and political compatibility, his merit, competence, experience and suitability before approving or disapproving the nomination. It will thus be seen that the process of selecting a candidate for appointment to the U.S. Supreme Court is solely an executive function which has the backing of the Senate. Surely, it cannot be argued that and was indeed not argued, the people of America who were jealous in enforcing the doctrine of separation of powers with a view to ensuring the total independence of the judiciary were at the same time willing to dilute it? Their concept of judicial independence is clearly of post-appointment application. Once the nomination is complete and the candidate enters the judiciary family h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld office during the pleasure of the Crown although their salaries were ascertained. On the enactment of the High Courts Act, 1861, these courts were replaced in 1862 by High Courts. Under the Government of India Acts, 1919 and 1935 the power of appointment was exclusively with the Crown, but under the latter Act the age of superannuation was fixed at 60 years subject to the Crown's power to remove a judge for misbehaviour or mental or physical infirmity on the report of the Judicial Committee of the Privy Council. Thus judges enjoyed independence from the executive but continued to serve under the Crown's pleasure. However, on account of the British culture of judicial independence, the judges of the High Court functioned without any executive interference or fear of interference. The Federal Court later strengthened this great tradition of judicial independence. The purpose of setting out this abridged historical background is to point out how the pendulum swung from total executive control to near total judicial independence except for the limited scope of the pleasure doctrine. Our founding fathers were aware of these developments in England, America and British India w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to appoint District Judges is vested in the Governor of the State which he must exercise in consultation with or on the recommendation of the concerned High Court. Thus consultation with and recommendation of the High Court is a condition precedent to the exercise of power by the Governor of the State. 386. We now move on to the provisions in regard to High Courts in the States. Article 214 ordains that there shall be a High Court for each State. Under Article 216 every High Court must consist of a Chief Justice and such other Judges as the President may, from time to time, deem it necessary to appoint. We may at this stage point out that the number of judges to be appointed in each High Court is 'as the President may from time to time deem it necessary to appoint.' A duty is, therefore, cast by this provision on the President to review the judge strength from time to time if he deems it necessary to appoint more judges in the High Court he must ensure an increase in the Judges-strength. Article 217(1) is of importance and may be reproduced : 217 -Appointment and Conditions of the office of a Judge of a High Court. (1) Every Judge of a High Court shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once the consultation process contemplated under this Article is completed, the power to appoint a judge of a High Court is conferred on the President. Once appointed he will hold office until he attains the age of 62 years and as provided by Articles 121 and 211 his conduct in the discharge of his duties shall not be discussed in Parliament or any State legislature, except on a motion for his removal. He can be removed from his office only in the manner provided by Article 124(4) of the Constitution for the removal of a Supreme Court Judge. However, he shall vacate office on his being appointed by the President to be a Judge of the Supreme Court or on his being transferred by the President to any other High Court within the territory of India under Article 222(1) of the Constitution. Article 219 provides that every person appointed to be a Judge of a High Court shall, before he enters upon his office make and subscribe before the Governor of the State or some person appointed in that behalf by him an oath or affirmation according to Form VIII in the Third Schedule meant for High Court judges. It reads as under : I, A.B., having been appointed Chief Justice (or a Judge) of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to requisition the services of retired judges has to be exercised by the Chief Justice of the High Court with the 'previous consent' of the President. Under Article 229 the power of appointment of officers and servants of a High Court is vested in the Chief Justice of the Court or such other judge or officer of the Court as he may direct. It will be seen from these provisions in the Constitution that the power of appointment is vested in the President and has to be exercised in the manner set out in the various provisions adverted to hereinbefore. Throughout, the entire scheme is that the power is to be exercised by the President or where the power is conferred on the Chief Justice, he has to exercised it with the President's consent. The scheme of this chapter reveals that under Article 217(1) the appointment to be made by the President must be after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a judge, the Chief Justice of the High Court. But if any question arises as to the age of a judge of the High Court, the President is empowered to decide it after consultation with the Chief Justice of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of proved misbehaviour or incapacity. Every person appointed a judge of the Supreme Court is required to make and subscribe before the President or his appointee an oath or affirmation according to Form IV in the Third Schedule which reads as under : I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do Swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws. No person who has held the office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India, see Clause (7) of Article 124. Just as in the case of High Court judges, so also in the case Supreme Court judges the salaries, allowances, pensions, etc., are protected and charged on the Consolidated Fund of India (Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the High Court and the second part provides for the appointment of an advocate or pleader or seven years standing on the recommendation of the High Court. The Governor's power of appointment is conditioned by the obligation to consult the High Court and such consultation must be meaningful and purposive and cannot be reduced to an empty formality. Consultation cannot be complete, purposive and effective unless the High Court which is best suited to adjudge the merits and suitability of the candidate is consulted and its view obtained before the appointment is made. See Chandremouleshwar Prasad v. Patna High Court and Ors. 1970 (2) SCR 666 : AIR 1970 SC 370. Once the appointment is made by the Governor after consultation with the High Court or on its recommendation and the appointee enters the cadre of district judges he falls within the High Court's control under Article 235 of the Constitution. His independence is then secure because it is settled law that the High Court's control under Article 235 extends to transfer as well as disciplinary matters. See State of West Bengal v. Nripendra Nath 1966 (1) SCR 771 : AIR 1966 SC 447 and State of Assam v. Ranga Mahammad and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judges in the country. The proviso then says that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India 'shall always be consulted'. There was some argument on the question whether consultation with anyone or more of the consultees specified therein is a 'must' and the word 'may' grants an option only in regard to the choice from amongst the consultees or whether the said clause is optional in its entirety. But there was no controversy that the proviso mandates consultation with the Chief Justice of India. We will deal with this question at the appropriate time when we examine the content of Clause (2) of Article 124 of the Constitution but at this stage it would suffice to point out that according to Bhagwati, J in S.P. Gupta's case at page 547 the practice has throughout been of consulting the Chief Justice of India alone. That practice may be on the presumption that consultation with the Chief Justice of India satisfies the requirement of Clause (2) as well as the proviso thereto. Be that as it may, the possible situations which can emerge are : (i) the President consults the Chief Justice of India alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uting the High Court. In the case of appointment of persons to the judicial service other than as district judges, Article 234 requires that their appointments shall be made in accordance with rules made by the Governor in that behalf in consultation with the State Public Service Commission and with the High Court. Therefore, even though the ultimate appointment of a person to be a district judge rests with the Governor, he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has, as the case may be, recommended the appointment. Consultation would not be complete, meaningful and effective unless there has been an exchange of views and in the event of disagreement the executive has indicated the reasons for its disagreement to the High Court and has disclosed the material on which the disagreement is based. Therefore, the obligation to consult the High Court is so integrated with the exercise of power by the Governor that the power must be exercised in the manner provided by Article 233(1) or not at all. In order that the requirement of consultation does no end up as an empty formality or is not reduced to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prising that except in rare cases where they may have gone wrong for want of some material that the executive may take a different approach and invite the High Court to revise its opinion in the light of that material, e.g. I.B. Report or the like. It is significant to note that consultation is not limited to the Chief Justice of the High Court presumably because it was not though wise to limit the consultation with one single individual. The Constitution makers have chosen to rely on the collective wisdom of the High Courts as a body and not any single individual, howsoever high he may be placed. 392. Insofar as appointment to the High Court is concerned, the same is governed by Article 217(1). We have reproduced the text of this Article earlier. The appointment has to made by the President by warrant under his hand and seal. But it must be preceded by 'consultation' with the Chief Justice of India, the Chief Justice of the State and the Governor of the State. Consultation with these three functionaries is a condition precedent and a sine qua non to appointment. It is common knowledge that the proposal ordinarily emanates from the Chief Justice of the High Court who for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and similar other qualities, including his willingness to work hard his temperament to discharge judicial functions. From that point of view great weight must be attached to the opinion of the Chief Justice of the High Court. On other matters, such as, the antecedents of the individual, his political affiliations, if any, his other interests in life, his associations, etc., the executive alone may provide the information. Similarly, the executive would be able to collect information regarding the honesty and integrity of individual and certain other relating matters which may have a bearing on his appointment. Thus the opinion of the executive in this area would be equally important. From both these opinions would emerge the personality of the candidate proposed for appointment. The Chief Justice of India being 'pater familias' as the judiciary in India would have the advantage of the views of both these consultees and, where necessary, he may also be able to interact with the Chief Justice of the High Court as well as colleagues on the Supreme Court Bench from that court, if any, before formulating his view finally in the matter. His view, thus formulated would certainly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the recommendation the same may be immediately accepted in which case the President may be requested to make the appointment or there may be consultation with one or more of the judges from among those falling within the zone of consultation under Article 124(2) of the Constitution. If after such consultation, the Minister considers it desirable to bring any matter emerging from consultation to the notice of the Chief Justice of India or to suggest the claim of any other person recommended by the latter, he may convey his views/suggestions to the Chief Justice of India. On obtaining the view of the Chief Justice of India finally, the Minister is expected to apprise the Prime Minister and with his concurrence advice the President of the selection. The President will act on that advice and issue the warrant of appointment. This practice which is hitherto followed reveals that the Central Government's understanding of Article 124(2) is that it is not incumbent on the Government to consult any Judge of the Supreme Court or the High Court including any Chief Justice of the High Court if consultation with the Chief Justice of India is considered sufficient and no further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f there is lack of understanding in a wide range of cases between them. The executive and the judiciary are not adversaries, they are. not supposed to work at cross purposes, then what is so surprising if in a vast majority of cases barring seven they have reached an agreement on the selection of the candidates for appointment And what is the justification in believing in the absence of statistical information, that in all these cases it was the executive which yielded to the view of the Chief Justice of India? Could it not be that in some cases the executive was able to convince the Chief Justice of India to its point of view and in some others the Chief Justice of India was able to persuade of the executive to his point of view? If the attitude of the executive has been to arrive at a consensus to minimise differences of opinion, it is in fact a healthy attitude which need not be read as yielding to the primacy concept. In fact, if the differences were too many one would be led to believe that there was a break-down of the constitutional mechanism of selecting judges for the superior judiciary. In fact the difference in seven cases, a negligible percentage no doubt, is speaking e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is envisaged. So also in the case of transfer of determination of age, consultation with the Chief Justice of India is a must. It will thus be seen that different expressions are used to convey different meanings. We have already pointed out earlier that the plain language of Articles 124(2) and 217(1) do not convey that the process of consultation means concurrence with the views of the Chief Justice of India. However, counsel for the petitioners and their allies submitted that the said expression must be given a meaning which is consistent with the constitutional philosophy of independence of the judiciary as enshrined in Article 50 and the discharge of the fundamental duty of abiding by the Constitution and respect for its ideals and institutions (Article 51A(a)). According to them consultation, in the context of safeguarding judicial independence, with the head of the Indian judiciary cannot merely seeing his views but must be understood to mean that his word in the matter of appointment to the superior judiciary will be final and the advise which the Prime Minister must give must be in accordance with the opinion of the Chief Justice of India so that the President may ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendation of the Cabinet by the Governor-General. In the United States the appointment to the Supreme Court is made on the nomination by the President subject to confirmation by the Senate. It will thus be seen that in these developed countries whose people are no less jealous of preserving judicial independence, the initial appointment at the entry stage is by the executive. 397. In British India, under the Government of India Act, 1915, Sections 101 and 102, appointment of the Chief Justice and Judges of the High Court was in the absolute discretion of the Crown and their tenure was governed by the pleasure doctrine. Under the Government of India Act, 1935, Sections 200 and 220, the appointments to the Federal Court and the High Court continued to be an executive privilege but their removal was dependent on a report from the Judicial Committee of the Privy council to the Crown. We have pointed out the development of the concept of judicial independence in British India earlier and see no reason to repeat the same. Since our Constitution makers were alive to the need to insulate the judiciary from external pressures they introduced the concept of consultation with the Judiciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court at any place outside Delhi. He is empowered by Article 146(1) to make appointments of officers and servants of the Supreme Court. He also chairs the meetings of the judges of his court and presides over the Chief Justices' Conference and leads delegations when required. His position is like that of 'patria protestas' under the Roman Law. These responsibilities are symbolised in the official title, 'Chief Justice of India', and to that limited extent he is accorded primacy. See Lawrance Baum on 'The Supreme Court' (4th Ed.) at page 16. 400. Undoubtedly the office of the Chief Justice of India is given a special recognition under Articles 124(2), 217(1), 217(3) and 222(1), in that, consultation with him is a must before any decision contemplated under those provisions is finalised. Since the expression of opinion in regard to appointments to be made to the superior judiciary is a non-judicial function, in fact it is a function in aid of the executive function of the President i.e. the executive, to select candidates for appointment to the superior judiciary, the Constitution mandates consultation with him and others mentioned in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of Section 1(1) of the New Towns Act, 1946. The learned Judge observed : The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which consultation must take place. The Act does not prescribe any particular from of consultation. If a complaint if made of failure to consult it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events. This passage was relied upon by Subba Rao, J. (as he then was) in R. Pushpam v. The State of Madras AIR 1953 Madras 392. The learned judge after reproducing the passage proceeded to observe : It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied about its weakness. The requirement of consultation is never to be taken perfunctorily of as a mere formality. Again in R. v. Secretary of State for Social Services, exparte Association of Metropolitan Authorities (1986) 1 All England Reporter 164, Webster, J. observed at page 167 as follows : There is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegated legislation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is not a mere formality, nonetheless it is not of a binding character. It is, therefore, difficult to hold that the advice tendered by the Chief Justice, of India was intended to be of a binding character and the executive had no choice but to follow it; to so hold would be to bestow a right of veto on the Chief Justice of India which does not fit in with the constitutional scheme. It was said that the object of providing for consultation was clearly to control and limit the discretion vested in the President, that is, in effect the executive, in the matter of appointments to the superior judiciary but that cannot mean that the Constitution makers desired to transfer the power of appointment to the Chief Justice of India. If it was so nothing would have been simpler than using the expression 'concurrence' or 'consent', which expressions have been deliberately not employed because the Constitution makers did not intend to vest the final say in the Chief Justice of India. This view gets reinforced if we recall to mind the fact that Mr. B. Pocker Sahib had moved amendments to introduce the requirement of the 'concurrence' of Chief Justice of India in the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court pointed out that the process of consultation has its own limitations which are well known and observed that as a matter of convention, it is the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But it is significant to note that their Lordships did not favour the introduction of the concept of concurrence of the Chief Justice of India. Even in the subsequent decision in S.P. Sampath Kumar etc. v. Union of India and Ors. 1987 (1) SCR 435 : AIR 1987 SC 386, the suggestion made was to provide for 'consultation' with the Chief Justice of India or his nominee and not concurrence. It is, therefore, manifest that this Court has shown restraint in interfering with the judicature mosaic so carefully designed in our Constitution. Bill No. 93 of 1990 was introduced in the Lok Sabha on 18th May, 1990 as the Constitution 67th Amendment Act to provide for the Constitution of the National Judicial Commission for appointments to be made to the superior judiciary. The statement of objects and reason of the Bill would show that the change was proposed to obviate the criticism of arbitrariness on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the executive in the choice of members of the superior judiciary is controlled by the need for prior consultation with the judicial wing. But as pointed out earlier the plain language of the relevant Articles of the Constitution does not support the theory of a veto in the Chief Justice of India, i.e., there are no indications to support the argument that the Chief Justice of India should have the last word in the matter of selection of a candidate for appointment or rejection of a candidate suggested by the other constitutional functionaries-consultees. It must be realised that the concept of 'primacy' so vigorously canvassed before us has, in the context, two aspects, namely (i) primacy in the sense of the opinion of the Chief Justice of India being the last word binding on the consultation and (ii) primacy in the sense that the opinion of the Chief Justice of India would prevail over the views of the other consultees if they are conflicting. We have already considered the first element in detail and have rejected it. So far as the second element is concerned we have set out the different facets thereof in detail hereinbefore and have pointed out the various situations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. The opinions of the consultees both under Article 124(2) and 217(1) are intended to act as checks on the exercise pf discretion by the executive which will be accountable to the people. It would be in exceptional cases that the executive would depart from the collective uniform advice of all the consultees. Take even a case where the Chief Justice of India expresses an opinion after consulting two of his colleagues. What if the opinion of his colleagues differs? Still his opinion will prevail Then the President consults a few judges of the Supreme Court and the High Courts and their uniform opinion conflicts with that of the Chief Justice of India. It would be unfair if the opinion of the other consultees is rendered redundant because it does not concur with the opinion of the Chief Justice of India. It is one thing to say that great weight should be attached to the opinion of the Chief Justice of India and another thing to say that amongst the consultee his word will be final. We, therefore, find it difficult to hold that the opinion of the entire judiciary is symbolised in the view of the Chief Justice of India and the President is bound to act in accordance therewith under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature has power to make laws, Counsel submitted that since neither List I nor List III in the Seventh Schedule empowers the making of any law regarding appointments to the superior judiciary it must be presumed that the power exercised by the President is not one which would attract Article 74(1) of the Constitution. But here counsel overlooks Article 248 and the residuary entry 97 in List (by which exclusive power is conferred on Parliament to make laws even in respect of subjects not specifically covered. Under the Constitutional scheme the States can make laws in respect of the subjects enumerated in List II in the Seventh Schedule. But that does not mean that the executive power is confined to matters falling within the legislative entries only. It must be remembered that both the President and Governor are formal heads and the executive power of the Union/State has to be exercised in the name of the respective heads. The President as well the Governor exercise power conferred by the Constitution on the aid and advice from the respective Council of Ministers, except where the Governor is required by or under the Constitution to exercise his functions in his discretion. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have been discussed at length in two decisions of this Court, viz, in Sankal Chand Sheth's case and S.P. Gupta's case. It had been clearly held that the transfer must be in public interest to subserve the needs of administration of justice. Article 222(1) enjoins prior consultation with the Chief Justice of India alone and hence his view would not reflect the views of the judiciary as the plurality concept is absent. The learned Attorney General rightly pointed out that after a candidate is chosen as a judge, greater care must be shown in dealing with him, a member of the judiciary, to ensure that the power of transfer is no viewed as an instrument to subvert the judiciary. Since here the only person to be consulted is the Chief Justice of India, a heavy responsibility lies on his shoulders to ensure that the transfer is in public interest and in the interest of judicial administration. The language of Article 222(1) does not convey that once a judge is transferred from one High Court to another, qua him the power of transfer gets exhausted and a second transfer is not permissible without his consent. It goes without saying that unless there are very pressing reasons, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically formulated even at the hearing of the reference on the procedure to be followed in the matter of appointments to the superior judiciary. In the absence of proper assistance from Bar we deem it unwise to express any opinion in this behalf. As Desai, J. would say : 'It is a well recognised pithet of constitutional wisdom that in constitutional matters the courts do not decide what is not brought before it nor would it proffer advice except in a reference under Article 143, on the wisdom or validity of a future action'. We are, therefore, of the opinion that it would be wise not to attempt laying down guidelines on one's own impressions about the working of the selection process. Despite this demurer we feel that since our leaned brothers have chosen to lay down certain guidelines or norms in regard to appointments, which in our view would be obiter dicta only, and which, we are afraid, may, for want of an intense debate at the Bar, create more problems rather than solve existing ones and may also embroil the Chief Justice of India into avoidable litigation and embarrassment, we must clearly express ourselves lest our silence is construed as consent. It must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no room for the legitimate expectation doctrine in cases where appointments are on merit and by invitation. We must hasten to add that where both the candidates under consideration are of equal merit, inter se seniority may have a role to play, subject to other requirements for maintaining the representative character, etc., being satisfied. We cannot help voicing our fear that the application of those help principles in the matter of choice of candidates for the superior judiciary is fraught with dangers. Nowhere in the world have these two principles been considered valid for appointments to the superior judiciary, except perhaps in france where the judiciary service is a career service, quite different from common law jurisdictions. As the issue does not arise from the referring judgment and was not put into direct focus, and as there was hardly any meaningful dialogue at the Bar, we too do not desire to go into the various facets of the matter as it is generally inadvisable to express opinions in the nature of obiter dicta on constitutional issues of great significance but we have said a few word lest our silence may be misunderstood to be concurrence with the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere surplusage because it is common knowledge that in every District Court or the High Court work is concentrated in the hands of a few lawyers and their non-availability on account of they being engaged before another judge may render the other judges idle. It would, therefore, be wrong to think that the increase in the judge-strength alone will solve the problem or arrears; it may, if scientifically worked out, certainly ease the same. What is really necessary is to effectively manage the dockets. Take for example a case where the apex court lays down the law n any subject. Now all cases down the line which depend on this decision must be disposed of in terms of the law laid down by the apex court. But for want of management no one knows how many such case are pending in all courts. As a result they remain dormant on the court registers and are disposed of only after they appear on the daily board in their own turn. It in the meaning complications have occurred even the disposal will be delayed. This is merely to highlight that increase in the judge-strength by itself will not make a very substantial impact unless the entire system is modernised with the help of computers etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to fill the increase posts. The entire problem is a complex one and eludes a workable solution. That is way in S.P. Gupta's case Bhagwati, J. said that since many complex policy considerations are involved, in the absence of 'judicially manageable standards', it is not possible to lay down any guideline of general application. Bhagwati, J., therefore, thought that it would not be possible for the judiciary, in the absence of judicially manageable standards, to issue any directive to the executive and, therefore, the matter must essentially remain within the discretion of the executive and if the latter does not appoint sufficient number of judges, the appeal must be to the legislature and not to the court. Tulzapurkar, J. on a consideration of Articles 216 and 224(1) came to the conclusion that thought a mandatory obligation is cast on the President to provide adequate strength of permanent judges in each High Court, it would not be 'proper' of the Supreme Court to give directions or reliefs by way of issuing a mandamus to make additional judges permanent by increasing the permanent strength of the High Court. He further stated that appointing judges is purel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections or issue a writ because appointing judges being a purely executive function it would be wrong to usurp that function 'unless forced by glaring circumstances'. He, therefore, put it on the ground of propriety but qualified it by the words 'unless forced by glaring circumstances' which imply that if glaring circumstances exist the power can be exercised by the Court. It is, therefore, necessary to bear the distinction in mind between absence of power and jurisdiction and refusal to exercise power on the ground of propriety although the court has inherent jurisdiction. Therefore, the first three learned judges have ruled that the court lacked the power and jurisdiction to issue writ or directive while the fourth leaned judgesays it would not be 'proper' to exercise that power unless glaring circumstances exist. Venkataramiah, J., however, held the issue to be justiciable to the limited extent of directing the Union to review the judge-strength periodically on the basis of workload. But as pointed out earlier fixation of judge-strength solely on the basis of workload may not be correct because accumulation of workload may be for diverse reasons. 411. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answered on legal principle whether the issue is or is not justiciable i.e. is it beyond the purview of the court or is it merely not proper to give any direction or issue a writ, though justiciable. This in essence raises the question of the ambit of judicial review. Under this doctrine High Courts and the Apex Court exercise supervisory jurisdiction over persons who are charged with the performance of public acts and duties. This jurisdiction was derived by courts though common law and was exercised by the issuance of an appropriate writ. What is generally reviewed is not the merits of the action but the decision making process itself. The court's duty normally is to confine itself to question of legality i.e. has the authority exceeded its powers or abused them, did it act in violation of the principles of natural justice or has it acted in a irrational, unreasonable, and arbitrary manner or the like. Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality (ii) irrationality and (iii) processual impropriety. But this may be true of cases where the public authority has performed its public duty and the action is questioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the limited extent of merely directing the executive to perform its part but the court cannot usurp the function itself and direct the executive to raise the judge-strength to any particular level. 413. The need for periodical revision of the judge-strength is essentially to ensure early disposal of court cases; the entire exercise would be meaningless if the existing vacancies and the new ones created by increase in the judge-strength are not filled in promptly. This has been emphasised time and again and even though a time bound programme for dealing with the proposals has been provided, delays continue on account of the functionaries involved in the process not abiding by the same. The process, particularly in the case of appointments to the High Courts, is time consuming as tae proposal has to pass through as many as six consultees but that is all the more reason why each functionary must show a sense of urgency to see that the proposal is not delayed unnecessarily. With the experience of working the system over more than four decades it would not be difficult for the Minister of Law and Justice in the Central Government to revise the guidelines, fix the maximum time each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultees or the sole consultee. (iv) The concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as 'pater familias' of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited primacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-a-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-a-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his view will not eclipse the views of his colleagues forbidding the Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in response to our notice and to the leaned counsel who appeared on either side. This styles of presentation of their view points differed but they brought to bear, with telling effect, their knowledge of constitutional law. Forensic art was at its best and we are deeply grateful for their able assistance which has made our task of decision-making relatively easy. With these words we say adieu to this reference. Reference disposed of accordingly. Kuldip Singh, J. 415. The President of India is the Appointing Authority for the Judges of the High Courts and of the Supreme Court. He is to make the appointments under Articles 217(1) and 124(2) of the Constitution of India after consultation with the Chief Justice of India and other functionaries drawn from Judiciary as well Executive. In the exercise of his functions the President of India is bound to act in accordance with the advice tendered by the Council of ministers. The core question for our consideration is whether the Judiciary headed by the Chief Justice of India or the Council of Ministers headed by the Prime Minister has a primal say in the matter of appointment of Judges of the High Courts and of the Supreme Court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er consultation with Can the expression be read to mean that the Executive is bound by the advice rendered by the Chief Justice of India as head of the judiciary? 6. The Chief Justice of India Whether acts in his individual (Articles 124(2) and 217(1) capacity or as head of the Judiciary? 7. Chief Justice of India The office to be filled by selection on merit or by mere seniority? 8. Other issues a) Appointments to Supreme Court; b) Transfers (Article 222); c) Fixation of Judges-strength. Stare decisis 419. Mr. K. Parasaran, learned senior advocate, appearing for the union of India has contended that the doctrine of stare decisis being the corner stone of our legal system, we should not interfere with the ratio of this Court in S.P. Gupta's case which has stood the test of time. 420. It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible. Whether it is to be followed in a given case or not is a question entirely within the discretion of this Court. On a number of occasions this Court has been called upon to reconsider a question already decided. The Court has in appropriate cases ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the meaning of the words without an acceptance of the line of their growth 424. The case before us must be considered in the light of our entire experience and not merely in that of what was said by the Framers of the Constitution. While deciding the questions posed before us we must consider what is the Judiciary today and not what it was fifty years back. The Constitution has not only to be read in the light of contemporary circumstances and values, it has to be read in such a way that the circumstances and values of the present generation are given expression in its provisions. An eminent jurist observed that Constitutional interpretation is as much a process of creation as one of discovery . 425. It would be useful to quote hereunder a paragraph from the judgment of Supreme Court of Canada in Hunter v. Southam INC (1984) 2 SCR 145 at 156 : It is clear that the meaning of 'unreasonable' cannot be determined by recouse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a Constitution is crucially different from that of construing a statute. A Statute defines present rights and obligations. It is ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land. The Judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the Judiciary. Constitution is the will of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature declared in the statutes stands in opposition to that of the people declared in the Constitution the will of the people must prevail. The Constitution of India provides for an elected President. House of people is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power called judicial review under which they nullify unconstitutional acts of the Executive and of the elected repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary has been secured by providing security of tenure and other conditions of service of individual Judges. This may be so but in recent times, with the expanded horizon of judicial review, the concept of judicial independence has achieved new heights. The Supreme Court of Canada in The Queen v. Beauregard (1987) LRC 180 propounded the broader concept of judicial independence as under : Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases the come before them: no outsider be it government, pressure group, individual or even another judge should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle. Of recent years the general understanding of the principle of judicial independence has grown and been transformed to respond to the modern needs and problems of free and democratic societies. The ability of individual judges to make decisions in discrete cases free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unciated by the Supreme Court of Canada in the above quote judgment. It is not the security of tenure provided to an individual judge which alone is the source of independence of judiciary but there has to be an independent judiciary as an institution. The judiciary in India has to act as an impartial umpire to resolve disputes between the Government and the private individuals as well as between the Government inter se. It has also to protect the fundamental rights of the individuals guaranteed under Part III of the Constitution. The courts in this country have already expanded the scope of judicial review by bringing in its ambit social, economic and political justice. Keeping in view the expending horizon of judicial review it is the paramount need of the time that not only the independence of an individual Judges is to be secured but the independence of Judiciary as an institution has also to be achieved. 434. Then the question which comes-up for consideration is, can there be an independent Judiciary when the power of appointment of Judges vests in the Executive? To say yes, would be illogical. The independence of Judiciary is inextricable linked and connected with the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these and many other essential rules of the Constitution are found in the Constitution of India as framed by the Constituent Assembly. It was A.V. Decey who for the first time, in the year 1885, identified these unwritten rules and called them The Conventions of the Constitution . What Decey described under these terms are the rules of responsible Government which regulate relations between the Crown, the Prime Minister, the Cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of precedents during 19th Century and were inherited by the British colonies as were granted self government and independence. This phenomenon is not limited to Britain and is true of constitutions in general. Conventions are found in all established constitutions and soon developed even in the newest. 436. Two sets of principles, thus, make up the rules of constitutional law. One set of rules is contained in the written Constitution of a country and the other set is referred to as the conventions of the constitution . Conventions are a means of bringing about constitutional development without formal changes in the law. K.C. Where in his book The Statute of Westminste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht at first sight appear, from each other not only in importance but in general character and scope. They will be found however, on careful examination, to possess one common quality or property; they are all, or at any rate most of them, rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised: and this characteristic will be found on examination to be the trait common not only to all the rules already enumerated, but to by far the greater part (though not quite to the whole) of the conventions of the constitutions of the constitution. The written constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow by the passage of time. Conventions are vital in so far as they fill-up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional frame work. Whatever the nature of the constitution, a great deal may be left unsaid in legal rules allowing enormous discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed in 1968 to serve on a Conservative opposition Committee, but quickly resigned when faced with public criticism and a statement by the Lord Advocate that conventional rules had been breached. Another example was the embarrassment caused by the disclosure in 1984 that the Master of the Rolls had advised the government in respect of its policy on trade unions. In R. v. H.M. Treasury, exp. Smedley (1985) Q.B. 657 at 666, Sir John Donaldson M.R. referred to the relationship between Parliament and the Judiciary in terms of conventions : Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature. 442. K.C. Wheare in his book Modern Constitutions gives at least two source of conventions. A course of conduct may be persisted in over a long period of time and gradually attain first persuasive and then obligatory force. According to him a convention may arise much more quickly than this. There may be an agreement among the people concerned to work in a particular way and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above). The majority concluded that it would be unconstitutional (i.e. in breach of convention) if the Trudeau scheme went forward. The judgment dealt separately with the issues of law and convention. On the second question, the Court by majority of 7 to 2 held that it was lawful for the Trudeau scheme to be submitted to Westminster without provincial agreement. The majority held that there was no legal rule which limited the power of the Canadian Parliament to adopt resolutions seeking amendment. It was further held What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute . There was no process by which constitutional conventions crystalised law . 447. The decision apparently sounds paradoxical. The court following the tests laid down by Sir Ivor Jennings, found as a fact that the convention existed. It also held that the proposed legislation infringed the convention. The court even went to the extent of concluding that infringing the established convention would be unconstitutional. Having gone that far, the logical conclusion could only be that the convention being part of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which constrains the boldest political adventurer to obey the fundamental principles of the Constitution and the conventions in which these principles are expressed, is the fact that the breach of these principles and of these conventions will almost immediately bring the offender into conflict with the courts and the law of the land. 449. It is not necessary for us to delve into this subject any more. We agree a convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become law. When customary rules are recognised and enforced by courts as law, there is no reason why a convention cannot be crystallised into a law and become enforceable. Conventions cab become law also by judicial recognition stated K.C. Where Modern Constitution (1966 Edition). It is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent then there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten conventions of the Constitution. Needless to say that the conventions necessary to govern the Cabinet system, based on British pattern, are befng strictly followed in this country. Dr. Rajendra Prashad in his speech, as President of the Constitution Assembly while moving for adoption of the Constitution of India observed as under : Many things which cannot be written in a Contitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. 453. In U.N.R. Rao v. Smt. Indira Gandhi (1971) Supp. SCR 46, the question before this Court was whether under the Constitution, as soon as the House of People is dissolved, the Council of Ministers i.e. the Prime Minister and other Ministers, cease to hold office. Recognising the existence of a convention, this Court answered the question in the negative. Chief Justice S.M. Sikri speaking for the Court observed as under : We are grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, is whether a smooth interpretation can be given to these articles with the aid of established conventions operating in this field of constitutional functioning. 457. Prior to coming into force of the Constitution of India the appointments of Federal Court Judges and Judges of the High Courts were made under Sections 200 and 220, respectively, of the Government of India Act, 1935. The appointments were in the absolute discretion of the Crown. In other words, the executive, by itself, with no provision at all for consultation with the Chief Justice of India or with the judiciary in the any other manner, was the authority to make appointments to the superior judiciary. We have, however, contemporaneous evidence to show that under the Government of India Act, 1935 the said appointments were invariably made with the concurrence of the Chief Justice of India. 458. Copies of the Draft Constitution of India were circulated to the Federal Court and the High Courts for eliciting views of the Judges. Keeping in view the fundamental importance of the document a conference of the Judges of the Federal Court and the Chief Justices of High Courts was convened to discuss the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rajya Sabha on November 23, 1959 stated as under : People feel that the executive does not work properly. It is the judiciary that works properly. That feeling is still there. We should respect such a feeling. Let the Chief Justice of the State and the Chief Justice of India make the appointment. Why should there be a hand of the executive in the appointment of High Court Judges? What is the meaning of it? If the Chief Justice of a State does not know his subordinate judiciary or the members of the Bar, then it is a misfortune. But we cannot avoid it. I assure you that, if the Chief Justice makes an appointment, people are always happy. They are sure that no other consideration has weighed with the High Court at least no political consideration, no extraneous consideration weighs with judges. 462. Mr. P.N. Sapru, speaking in Rajya Sabha on November 23, 1959 depicted the correct position as under : The correct position in this matter should be that the highest importance and the highest weight should be attached to the recommendation of the Chief Justice of the Court concerned particularly if it is backed by the opinion of the Court and normally except for some reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gobind Ballabh Pant, Ministery for Home Affairs (Appointment of Judges was dealt with by the Home Ministry) replying to the debate on the 14th Report of the Law Commission in the Rajya Sabha on November 224, 1959, stated under : Sir, so far as appointments to the Supreme Court go, since 1950 when the Constitution was brought into force, nineteen Judges have been appointed and everyone of them was so appointed on the recommendation of the Chief Justice of the Supreme Court. I do not know if any other alternative can be devised for this purpose. The Chief Justice of the Supreme Court, is, I think, rightly deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States. So we have followed the advice of the most competent, dependable and eminent person who could guide us in this matter. Similarly, Sir so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except on, i.e., 210 out of 211 were made on the advice, with the consent and concurrence of the Chief Justice of India. I have listened to some of the speeches that were made and also gone tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Chief Justice of India. (iii) All the appointments to the Supreme Court from 1950 to 1959 were made with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to the High Courts during that period were also with the concurrence of the Chief Justice of India. (iv) Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor of the Parliament on November 24, 1959 that appointment of Judges were virtually being made by the Chief Justice of India and the Executive was only an order issuing authority. (v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament on November 25,1959 that almost all the appointments made to the Supreme Court and the High Courts were made with the concurrence of the Chief Justice of India. (vi) Out of 547 appointments of Judges made during the period January 1, 1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the Chief Justice of India. 470. We may now apply the three tests laid down by Sir Ivor Jennings -Adopted by us to the facts of the present case. 471. The first test is What are the precedents? Under the Government of India Act 1935, which remained operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re two primary reasons in support of the convention that the primacy rests with the judiciary. There is no dispute that independence of judiciary is the basic feature of the Constitution. We have already dealt with in detail the concept of independence of judiciary and we have come to the conclusion that the exclusion of the final say of the executive in the matter of appointment of Judges is the only way to maintain the independence of judiciary. If that be so then there cannot be a better reason for reading such a convention while interpreting Articles 124(2) and 217(1) of the Constitution. The second and the more important reason for giving weight to the opinion of the judiciary is that the appointments are made to the superior judiciary and to find out the suitable persons for such appointments the expertise for that purpose is only available with the judiciary. It is difficult rather impossible to accept the submission that all the consulting functionaries must be regarded as of coordinating authority because on various aspects like integrity, capacity, character, merit, efficiency and fitness which are relevant for the purpose of judging the suitability of a person, the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other members of the Finance Commission (Article 180(1)), Chairman and other members of the Union Public Service Commission (Article 316(1), Chief Election Commissioner (Article 324(2)), Chairman of the Official Languages Commission (Article 344(1)) and Special Officer for Linguistic Minorities (Article 350(b)). 478. In the entire range of the presidential appointments, mentioned above, it is only in the case of judicial offices District Judges, High Court Judges and Supreme Court Judges that the appointments are made after consultation with the constitutional functionaries named in the relevant provisions. According to Mr. Nariman the obvious purpose for this is that they know better . Mr. Nariman further contended that the words after consult with must be interpreted and conditioned only by the true nature and object of such consultation. Relying upon Shamsher Singh and Anr. v. State of Punjab 1975 (1) SCR 814 and Union of India v. S.C.H. Sheth and Anr. (1978) 1 S.C.R. 423, Mr. Nariman contended that the interpretation given by this Court to the words after consultation with in S.P. Gupta's case is not correct. We see considerable force in the contentions of Mr. Narim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is with the consultor, but he will not generally ignore the advice except for good reasons. 481. While holding that President means, for all practical purpose, the Minister or the Council of Ministers as the case may be , this Court, in Shamsher Singh's case (supra), specifically noticed the constitutional provisions regarding consultation with the Judiciary and came to the conclusion that the Government of India was bound by the counsel given by the Chief Justice of India. The observations of V.R. Krishna Iyer, J. in this respect are as under : In the light of the scheme of the Constitution we have already referred to it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion, satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant Article making c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive is not free to make an appointment which has not been recommended by the Judiciary. Mr. Nariman invited our attention to the judgment in Colyar v. Wheeler 75 S.W. 1089 (Supreme Court of Tennessee) where in the words upon consultation and getting advice from were treated as equivalent to consent . In the said case a post-nupited settlement was the subject-matter of interpretation before the Court. It would be useful to quote the operative part of the judgment. The language is that the trustee may hold the legal title for the sole and separate use, with the absolute right of disposition as she may choose, upon Consultation and getting advice from the trustee. We are of opinion there can be no exercise of this power of disposition unless it appears that the conveyance was made upon consultation with and advice of the trustee. In our opinion, these words are equivalent to consent of the trustee, and his consent must be attested by his signature to the instrument. These trusts are create for the protection of married women, who are incapable of protecting themselves against the domination and improvidence of their husbands. The words of the trust will be strictly co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consultee zone under Article 217(1) of the Constitution. 489. According to Mr. Nariman it would not be a strained construction to construe the expressions Chief Justice of India and Chief Justice of the High Courts in the sense of the collectivity of Judges, the Supreme Court as represented by the Chief Justice of India and all the High Courts (of the concern States) as represented by the Chief Justice of the High Court. A bare reading of Articles 124(2) and 217(1) makes it clear that the Framers of the Constitution did not intend to leave the final word, in the matter of appointment of Judges to the superior Courts, in the hands of any individual howsoever high he is placed in the constitutional hierarchy. Collective wisdom of the consultees is the sine qua non for such appointments. Dr. B.R. Ambedkar in his speech dated May 24,1949 in the Constituent Assembly explaining the scope of the draft articles pertaining to the appointment of Judges to the Supreme Court stated as under : With regard to the question of the concurrence of the Chief Justice, it seem to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.5 and 7.6 recommended as under : When making the recommendation for appointment of a judge of the High Court, the Chief Justice, in our opinion, should also consult his tow senior most colleagues. It the letter containing the recommendation for the appointment, the Chief Justice should state that he has consulted his two seniormost colleagues and also indicate the views of each of those colleagues in respect of the person being recommended. As in the case of the High Court Court Judges appointment, so in the matter of appointment of a Judge of the Supreme Court, we feel that the Chief Justice of India, while making a recommendation, should also consult his seniormost colleagues. The number of colleagues to be consulted for this purpose should be three. The Chief Justice of India in the communication incorporating his recommendation should specify that he has consulted his three seniormost colleagues and also reproduce the view of each of them regarding his recommendation. The Law Commission in para 6.13 further recommended as under : At this stage, we should like to reiterate what we have mentioned earlier about the evolution of a convention that a recommendation made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court. The very fact, that the recommendation the outgoing Chief Justice of India has come to stay as a standing practice, goes to show that there is no existing convention of appointing the seniormost puisne Judge as the Chief Justice of India. 497. Seniority alone or selection on merit, is the question. The seniority rule stagnates the system due to lack of enterprise : merit on the other hand does justice to the selected and brings vigour to the system. In any case, to follow seniority alone rule, there has to be some objective basis for reckoning seniority. Method of appointment and seniority are inextricably-linked. Often, High Court Judges with lower seniority in the same High Court are selected for appointment to the Supreme Court. Many a time appointment is of a High Court Judge, to the Supreme Court, who is much lower in all India seniority. There are many instances where a junior High Court Judge was elevated earlier and some time later the senior from the same High Court was also brought to the Supreme Court. When Judges are appointed to the Supreme Court from two sources, and they take oath the same day, no one knows how the inter-se seniority is fixed. On an ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form. It is obvious that succession to an office of this character cannot be regulated by mere seniority. For the performance of the duties of Chief Justice of India, there is indeed, not only a judge of ability and experience, but also a competent administrator capable of handling complex matters that may arise from time to time, a shrewd judge of men and personalities and above all, a person of sturdy independence and towering personality who would, on the occasion arising, be a watch-dog of the independence of the judiciary. It is well-accepted that the qualifications needed for a successful Chief Justice are very different from the qualifications which go to make an erudite and able judge. The considerations which must, therefore, prevail in making the selection to this office must be basically different from those that would govern the appointment of other judges of the Supreme Court. In our view, therefore, the filling of a vacancy in the office of the Chief Justice of India should be approached with paramount regard to the considerations we have mentioned above. It may be that the seniormost puisne judge fulfils these requirements. If so, there could be no objection to his b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to consideration as one criterion of selection. It tends to eliminate favouritism of the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is as dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true . (Introduction to the Study of Public Administration, 4th Edn., pp.380, 382). 500. The only criticism against the method of selection on merit may be that in an atmosphere where correct appraisal is not available and the objectivity becomes a casualty, the method fails. The criticism has been proved wrong by the satisfactory operation, over a period of four decades, of the promotion rules pertaining to the All India Services. In any case this criticism is wholly irrelevant in the context of Judiciary. There is enough understanding of the proper values regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service in the High Court or in the All India hierarchy is the only basis for bringing the Judges of the High Courts within the pale of consideration. There are instances where a junior Judge from the High Court was elevated and some time later the senior Judges from the same Court was appointed to the Supreme Court. Is there any logic for such an arbitrary process? There are plenty of instances where Judges far below in seniority were appointed to the Supreme Court without considering their seniors in the same High Court. It was only with this background that Verma, J. has observed that seniority of a Judge in his own High Court and his legitimate expectations and aspirations have to be taken into consideration. Though there is plenty to say, we do not wish to delve into this subject any more. We agree with Verma, J. and hold that appointments to the Supreme Court are to be made on the basis of selection on merit , but in the process of selection the senior Judge in the same Court is entitled to be considered in preference to the junior one. We reiterate that the merit shall always be the out-weighing factor in the selection of Judges to the Supreme Court of India. 505. So fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered during the process of consultation. The argument is attractive but the view we have taken in the matter it is not necessary to go into the same. 509. On the basis of the reasoning and discussion on various issues, we conclude and hold as under : 1. Article 124(2) and 217(1) of the Constitution of India impose a mandate on the highest functionaries drawn from the Executive and the Judiciary to perform the constitutional obligation of making appointments of Judges to the Supreme Court and the High Courts collectively in consultation with each other. In the event of disagreement in the process of consultation, the viewpoint of Judiciary being primal, has to be preferred. 2. The majority view in S.P. Gupta's case (supra) giving primacy to the Central Government in the matter of appointment of Judges to the superior courts does not lay down correct law and is over-ruled to that extent. 3. The expression President in Articles 124(2) and 217(1) when read with Article 74(1) makes the President to act on the advice of the Council of Ministers with the Prime Minister as the head. The Prime Minister and the Council of Ministers are bound to tender the advice in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic interest. A transferred Chief Justice/Judge can he transferred again and the power is not exhausted after the first transfer. The consent of the Chief Justice/Judge concerned is not required under the Constitution. S.P. Gupta's case stands overruled to the extent. 11. A proposal for transfer of a Chief Justice/Judge under Article 222 has to be initiated by the Chief Justice Justice of India and the ultimate recommendation in that respect is binding on the Executive. 12. The transfer of a Chief Justice/Judge is not justiciable in the court of law except on the ground that the transfer was made without the recommendation of the Chief Justice of India. 13. Fixation of Judge Strength in the High courts is justiciable. The proposal made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, is binding on the Executive. S.P. Gupta's case overruled to the extent. 510. Before parting with the judgment it would be appropriate to say that the opinion circulated by Verma, J. was based on elaborate discussion amongst the Brother Judges who were available and participated in the discussion. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the summer vacation. I entertained the belief that we all, after July 12.1993, on the re-opening of the Court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court. I was indeed overtaken when I received the draft opinion dated June 14, 1993 authored by my learned, brother J.S. Verma, J. for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S.Anand and S.P. Bharucha, JJ. The fait accompli appeared a stark reality; the majority opinion an accomplishment. The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned brother Ahmadi, J. like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brethren Kuldip Singh and Pandian, JJ, dated September 7, 1993 and September 9, 1993 respectively. No meaningful meeting thereafter was possible as the views by that time seemed to have been polarized. So now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion through a Constitutional amendment. The record in this regard needs to be straightened. 520. It was viewed by the referring Bench that somewhere down the lane, on account of the majority opinion in S.P. Gupta's case, the special and priviledged position of the Institution of the Chief Justice of India, or in other words the 'primacy' of the Chief Justice was lost. This necessitated of putting to job a larger bench, to examine whether his primacy could be retrieved and restored back to him institutionally, in the context of appointment of Judges to the higher judiciary. Along side this thought, but on a different pedestal, was a doubt expressed that could it, under certain circumstances, be said in the first instance, that the Central Government is not bound to appoint a Judge so recommended by the Chief Justice of India, and in the second could a power be contemplated in the executive to appoint a person despite his being, disapproved or not recommended by the Chief Justice of the State High Court and the Chief Justice of India, and would that not be wholly inappropriate constituting an arbitrary exercise of power? 521. Now primacy of the Chief Justice of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank and precedence, was therefore not found to be necessary to be repeated in the Government of India Act, 1935, whereunder Provincial High Courts were set up, each consisting of a Chief Justice and other Puisne Judges. The understanding of the status, rank and precedence of the Chief Justice of a High Court was so entrenched and well received that its reaffirmance was found not necessary and the same hue has continued ever since, Likewise on such understanding the Federal Court under Section 200 was set up to consist of a Chief Justice of India and a number of other Judges. The Preamble of the Act of 1919 however being an article of faith and policy remained un-repealed and found itself preserved in the proviso to Section 321 of the 1935 Act, on repeal of the 1919 Act: A long road from that point of time led to the independence of India and to the framing and adoption of its Constitution. Thereunder we have a 'Chief Justice of India' as an essential constituent of the Supreme Court under Article 124(1) of the Constitution. In plain words he is an institution by himself. Besides he is also a component of the judicial institution known as the Supreme Court of India. Under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whenever he is referred to singularly in the Constitution in contrast to the word 'court' wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element. 523. Legislative history further tells us that prior to the Constitution and during the British Rule, no law warranted the Executive to consult the Chief Justice of the Federal Court and/or that of the High Court for appointment of Judges in the aforesaid courts. In the Memorandum of the Federal Court and the High Court Chief Justices of March, 1948, above referred to, while suggesting that every Judge of the High Court be appointed by the President on 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, view was expressed that it was not necessary to make any provision in the Constitution to cover the possibility of the Chief Justice of India refusing t.o concur with an appointment proposed by the President, as both were officers of the highest responsibility, and by then, no such case of such refusal had arisen, although a convention existed that such appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person but after all, the Chief Justice is a man with all the failings, all the sentiments, and all the prejudices which we as common people have and I think to allow 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 this is also a dangerous proposition. (emphasis now supplied) 525. At this juncture, priorly, the wording of the preamble of the Government of India Act 1919 be recalled as to the concept of sense of responsibility . According to Dr. Ambedkar sense of responsibility had not grown to the extent needed, so as to trust the Executive to be making judicial appointments, as was its predecessor's role under the Crown. He rather termed it dangerous to leave the appointments to be made by the President merely on the advice of the Executive without any kind of reservation or limitation. Perhaps it was thought at that time that the President has some discretion vested in him to turn dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould go by the advice given. Thus it is at the Prime Minister's level that the search of the primacy of the Chief Justice needs to be directed; more so when literally the duty to obtain consultation has in judicial channels been viewed to be hardly an effective check, limitation or reservation on the power of the consultor, ordinarily. The alternate proposal to have an appointment proposed by the executive and concurred to by the legislature was also negatived, because the check in the exercise of such power was filling on an other high constitutional dignitary i.e. the Chief Justice of India. 527. We need not feel uneasy to put up with the Constitution as it exists. Ours is a constitution, perhaps the longest in the world, a document written profusely. There is no miserliness employed in the use of words. As an organic whole it has a live model to imagine about; the Westminster model. All problems facing the nation, soluble with the aid of law, must find answers through the language and framework of the Constitution. All new thoughts and solutions to new problems experienced, not envisaged by the Founding Fathers, must translate themselves through the words of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... democratic Constitution but successful working of democratic institutions requires in those who have to work them willingness to respect the view-points of others, capacity for compromise and accommodation. Many things which cannot be written in the Constitution are done by convention. Let me hope that we shall show those capacities and develop those conventions. 528. This is reflective of the need of the hour. It is by retentivity and practice of such thought that we sustain independence of judiciary ; the democratic way of life, and working of the Constitution in mutuality of concern and respect. It is this idealism which promotes the Rule of law whose workability rests on the cushion of checks and balances. One-upmanship is totally out of tune with the working of our Constitution. Does not civilisation in its march keep searching all the time men who can deliver the goods? Towards that and have not the people of India through the Constitution placed faith in the aforesaid constitutional functionaries enjoining on them, the duty to search and put to use, from amongst them, persons who can deliver the goods, to man the higher echelons of judiciary? That trust has to be dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationship of the Chief Justice of India which his puisne Judges. The Union Judiciary i.e. the Supreme Court of India under Article 124 consists of a Chief Justice of India' and other Judges in terms thereof. The language employed is plain and unambiguous, distinguishing him from other judges of the court. The Chief Justice of India vis-a-vis other Judges of the Supreme Court has a unique position, primal in rank and status. He is not only paid more than the other Judges of the Supreme Court, but hold, unlike them, the responsibility of fixing roster, knitting benches, allocation of work etc. and of doing other administrative functions. Article 146 is also a clear pointer of his administrative role. Thus he stands apart by virtue of his office. There can be no two opinions on that score cither in the context or in the spirit of Article 124. In comparison the matter of appointment of Judges of the Supreme Court is his constitutional function. The Chief Justice of India on the plain language of Article 124(2) is always singularly to he consulted by the President of India before making an appointment, whereas, in contrast, his puisne judges are separately referred to be barely fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , with respect, I do not share in all situations; lest of all in the case of discretion vested in the Chief Justice of India. His is a unique position of trust reposed in him by the People of India through the Constitution. Entertainment of doubt in this regard is totally impermissible besides being unfounded. Then it is derived that the scope of human discretion (his discretion) should therefore be reduced or wiped out by laying down some guidelines so as to put those guidelines in the realm of law so that they become enforceable as law. As a result the discretion vesting in one individual (the Chief Justice of India) on the suspicion of its being unreasonable and arbitrary need be snatched and handed over fictionally to the country's judiciary of the higher echelons as a body but actually to body of men introducing a new element of plurality in the final decision under the going name of collective wisdom . In support of this step it is viewed that since the constitutional scheme frowns on vesting of absolute power in one individual, the Chief Justice of india cannot be left to have a singular role to play under Article 124(2) of the Constitution and reference to him in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt likely to enter, encroach or trespass into the judicial portals, then that by itself would not cleanse the quality of judiciary. What is needed is to prevent executive minded persons to get in as Judges. The judiciary need to be saved from men of a pre-dominant executive temperament, men who brew conflict, men who relish and thrive on confrontation, men who would compromise principles to gain their point, men who are not historians of the past and prophets of the future, but believe in short term existences. To quote a Lord Chancellor of England, gentlemen are required in the judiciary and some knowledge of law is an advantage. And gentlemen are found on both sides of the fence. No side can lay claim to gentlemen as their exclusive possession. 532. A centuries old Baconian example given to describe the plight of a litigant coming to a court of law conies to my mind. It was described that when the sheep ran for shelter to the bush to save itself from rain and hail, it found itself deprived of its fleece when coming out. Same fate for the institution of the Chief Justice of India. Here it results simply and purely in change of dominance. In the post S.P. Gupta's period, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sitting on the couch of Article 14 been telling the Executive what is right from our point of view, and had it done our way? Multiplication of examples would hardly be necessary to hammer the point. There is nothing to feel shy in stating that the traditional role of the court of remaining apolitical is a thought of the past. Political thinkers view even the Supreme Court of United States as a political institution. It is thought that the Court is a Policy Maker through interpretation. Its views have significance in policy making of the Government. Judicial activisms in various governmental fields, executive and legislative, could overturn policies. This Court's role is similar to that. Correspondingly there are protagenists for the view for its avoidance by judicial restraint again a policy. Lawrence Baum in The Supreme Court IVth edition at page 2 says : People often speak of courts as if they are, or at least ought to be, non political . In a literal sense this is impossible. Popular though this view of the courts may be it is simply inaccurate. The Supreme Court is political in a variety of ways. The higher judiciary in this country was never so full with po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should not, fructify on the mere asking of the Chief Justice because his recommendation in the very nature is incomplete and inchoate unless and untill the twain information about the character, honesty, integrity gentlemanliness, and a host of other attributes are supplied by the Executive. The Executive also is in a position to supply the possible impact of the appointment as to whether it would receive acclaim and approval in the society or not. Thus it is evident that as the human being is not dissectible and is assessible as a whole, the qualities and attributes gatherable by the two functionaries should be pooled and churned as a whole so that the appointment surfaces in approval or disapproval of both of them. The information covering areas cannot be divided in water-tight compartments or by allocation of higher or smaller roles or award of less or more marks as do the Public Service Commissions. There are a lot many overlapping areas coverable by the Executive as are areas in which difference of opinion may surface in assessment. Both need to entwine to help emerging appropriate acceptable appointments both to the Chief Justice of India and the Executive. In crystalising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emergence of right appointments. As said before, the Chief Justice of India has an over all role in the image and upkeep of the judiciary for he has a hand in the appointment of every High Court Judge and also a hand in the matter of transfers of Judges from one High Court to another. Those transfers need to have a basis. Unless he is obliged under the Constitutional scheme to oversee the functioning of the High Courts, he cannot purposively have a participatory role in the subject of transfers. In that limited hierarchical sense, the voice of the Chief Justice of India, in my view, to the proposal, should there be a difference, unexpected though, be the determining factor. The views of the Chief Justice of the High Court regarding an appointment, being virginal and primary in nature, he being the initiator, would normally be entitled to great accommodation, but should there ever be a difference with the views of the Chief Justice of India, the latter's view should be allowed to take the lead. For it cannot be ever said in the constitutional scheme that there are as many judiciaries in the country as of the High Court; the Supreme Court being just another. As a wing of the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and Chief Justice of the High Court in the matter of appointments of Judges of the High Court, is relative to this extent that should the Chief Justice of India be in disagreement with the proposal, the Executive cannot prefer the views of the Chief Justice of the High Court in making the appointment over and above those of the Chief Justice of India. In the matters of transfers of Judges from one High Court to another, the role of the Chief Justice of India is primal in nature and the Executive has a minimal, if not, no say in the matter, for consultation envisaged under Article 222 of the Constitution is used in a shrunk from and more as a courtesy, the subject being one relating to the inworking of the judiciary. 539. I am in dis-agreement, though regretfully but respectfully, with the views of the majority in virtually re-writing the Constitution to assign a role to the Chief Justice of India, in the whole conspectus of the Constitution, as symbolic in character and to his being a mere spokesman representing the supposed vies of entire judiciary. I also disagree, likewise, in the creation of and vesting of powers assumed, in the hands of the oligarcy representing th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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