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TMI Blog1990 (10) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders or directions in regard to the same. The petition from Bombay is confined to the relief of filling up of vacancies in the Bombay High Court. Since common pleas were advanced and the relief sought was of similar nature, these applications have been clubbed together and heard from time to time. 2. In response to the rule, the Union of India took the stand through the Attorney General that the petitions were not maintainable and the filling up of the vacancies in the superior courts was not a justifiable matter. Reliance was placed on the decision of this Court in the case of S.P. Gupta v. Union of India [1982]2SCR365 . The objection raised by the learned Attorney General was overruled by the Court by drawing a distinction between fixing the Judge strength in the Courts or selection of judges on one side and the filling up of vacancies on the basis of sanctioned strength on the other. This Court as an interim measure took the view that while the ratio in S.P. Gupta's case left the matter of fixing up of the Judge strength to the President of India under the constitutional scheme, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court was reduced by two. There was a time during the pendency of these writ petitions when the vacancies were more than 100 in the High Courts. From an affidavit filed before this Court on behalf of the Ministry of Law Justice the position as on 20th of February, 1990, showed that as against the sanctioned strength of 462, 368 had been filled up and the vacancies were 94 in all. By 16.8.1990, the sanctioned strength had gone up to 470 and as against these, 440 appointments had been made. The total posts to be filled up were 30 in number - 19 being permanent and 11 additional vacancies. We gather that by now some more appointments have been made and the number of unfilled posts has been reduced to around 22. 5. These cases, were adjourned from time to time with interim directions calling upon Union of India to fill up the vacancies within specified dates. As a result of monitoring by the Court by interim directions in these petitions, the position has somewhat eased but 22 vacancies still remain to be filled up. Will retirements and other cognate processes the number of vacancies keeps increasing from time to time. 6. We had made it clear to the learned Attorney Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of society, provisions have been made in the Constitution. 8. The Preamble of our Constitution stipulates justice - social, economic and political for all citizens of India. It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The Judiciary therefore becomes the most prominent and outstanding wing of the Constitutional System for fulfilling the mandate of the Constitution. For its sound functioning, it is, therefore, necessary that there must be an efficient judicial system and one of the fact, for providing the requisite efficiency is ensuring adequate strength. 9. For Rule of law to prevail, judicial independence is of prime necessity. Dr. Robert Mac Gregor Dawson, speaking about individual independence of Judges once said: The Judge must be made independent of most of the restraints, checks and punishments which are usually called into play against other public officers.... He is thus protected against some of the most potent weapons which a democracy has at its command: he receives almost complete protection against criticism; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications seeking to restrain the usurpation of jurisdiction by administrative bodies and applications or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts. It has to be observed that many laws have come in for challenge in the courts on the ground of their inconsistency with the Constitution. The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts. Their decision have not only taken longer time but have led not infrequently to reference to Full Benches which necessarily divert the available judge power from what may be called normal judicial work. As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very considerably. This increase of work and its specially difficult and novel character can well be regarded as an important cause of the accumulation of old cases. The Law Commission emphasised the position by further saying: Governments could have been unaware, at any rate from 1950 onwards, that the files of the High Courts were being loaded with a la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discipline of law. It is the law which teaches that men must not resort to violence to obtain their ends; that they must keep their promises; they must not injure their neighbours and they must act fairly. The law covers the whole range of human behaviour and says what men must do and must not do.... Law which is the very foundation of the civilized society is in peril.' 15. Sir Frederick Pollock in one of his lectures pointed out that long indifference to the legal system and to all that goes with it is the result of many generations of neglect in communicating to the layman some understanding of the very ground work of the legal system under which he spends his life. Religion, politics, art, literature - all these are taught as part of general education, but not the fundamentals concerning the administration of law, nor the history of liberty nor the need for public vigilance over its legal system. It is no surprise that faith and confidence in the law are steadily declining and legal systems, by and large, are losing their base of popular support on which they must ultimately rely. 16. We are living in an age when all traditional institutions are under scrutiny, suspi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or death. Apart from these eventualities, the date of vacancy in the post being known for years before there can really be no justifiable excuse for inaction in the initiation of steps for filling up the vacancy-Well in advance of its actual occurrence. The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the President of India makes the appointment. The involvement of the Governor brings in the Chief Minister and Presidential action involves the Central Government. If, however, every functionary associated with the process remains cognizant of the constitutional obligation involved in the matter we see no justification as to why for selection of the incumbent more than 3 to 4 months should be necessary. The system should be so perfect and smooth that with the retirement of one Judge his successor should be ready to step in and by this process not a day's judge strength should be lost to a High Court. 21. The question of appointment of Judges was the subject- matter of the 80th Report of the Law Commission. It referred to its earlier Report (1979) where it was said: As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awyer shrouded his ignorance of law, in that doubts are frequent and many; and (vi) that men's assurances of their lands and estates by patents, deeds, wills are often subject to question and hollow.... 23. Bacon's description to a considerable extent represents even today's situation. The volume of litigation has increased while there has been no commensurate expansion of the adjudicatory machinery. 24. When interim directions made in these cases were not yielding results, the Attorney General mentioned to us on repeated occasions that the consultations were taking time. Very often, while the Chief Justice of the High Court had made his recommendation, the response from the Chief Minister through the Governor of the State was not forthcoming, he used to say. Repeated reminders were being sent from the Union Government and they went unheeded. On one occasion to meet the stalemate we had indicated in an interlocutory order that a time-frame must be set for the response of the constitutional authority in the State and if there was no response forthcoming within the time, the Union of India should be in a position to proceed with the recommendation of the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding out the most suitable person for the vacancy. If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned. We intend to make it clear that this has to be the rule and the policy adopted by the Union of India as has been indicated to us in Court by the learned Attorney General should immediately be given up. In the functioning of public offices there is and should be a continuity of process and action and all objective decisions taken cannot be transformed into subjective issues. That being the position, recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain issues that fell for consideration in the case were whether the said circular interfered with judicial independence; whether at all, and if so under what circumstances, a judge of High Court could be transferred to another High Court without his consent; and as to the criteria on which an additional judge was entitled to be made permanent. Several incidental issues such as whether the lawyers who brought the petitions had the requisite 'standing to sue'; whether the records of the Government pertaining to the appointment or non-appointment of additional judges as permanent judges and to the transfer of judges were privileged from disclosure and, more importantly, the question as to the significance and status of the process of 'consultation' envisaged in the constitutional process of appointment of judges and the primacy of the position of the institution of the Chief Justice of India in the consultative process - whether the opinion and advice of the Chief Justice of India was on the same significance as those of the other constitutional functionaries viz., the Governor, the Chief Justice of the State who are consulted in the matter - also came to be debated. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the judicial organs of the State and same aspects may require clarification. 33. There is yet another aspect as to the right to initiate the appointment of Judges. In regard to this aspect, in practice, there appears to have been a distortion of the scope of the observations of the majority, even to the extent these observations go. The statement that there should be no embargo on the State executive initiating the proposal for appointments goes with the qualification that the State executive cannot send its proposals directly to the Union Government but should first send it to the Chief Justice of the State. Desai J., clearly and unambiguously qualified this right of the executive thus: ...Similarly, there could not be a blanket embargo on the State executive initiating the proposal. We agree that the State executive should not make its own recommendation and forward it directly to the center. The State executive initiating the proposal must first forward it to the Chief Justice of the High Court who would be better informed about the practising advocates as well as the District Judges subordinate to the High Court, and seek the views of the Chief Justice. The view of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of appointment vested in the Central Government and consultation cannot be equated with concurrence... it would therefore be open to the Central Government to over-ride the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court.... Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion.... [Emphasis supplied] 1982 (2) SCR 540 As to the primacy of the position of Chief Justice of India, the learned Judge observed: ...it was contended on behalf of the petitioners that where there is difference of opinion amongst the constitutional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and pater families of the judicial fraternity. We find ourselves unable to accept this contention.... Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned. [Emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y through the great institutions of democracy political statesmanship and the activist role of the judiciary that the much needed socio-economic transformation from a feudal and exploitative society to an egalitarian social and economic order of a true welfare State that the Constitution dreams of, can emerge. Political observers see that despite abject poverty and squalor amongst large sections of Indian masses, they manifest such rare intuitive political acumen, insight and sagacity which has sustained the democratic spirit that there is no justification for any cynical pessimism. Even if the assumption that large sections of the people are not be able to appreciate the constitutional niceties is true, that, by itself, does not detract from the necessity to maintain the highest standards of judicial independence. On the contrary the need becomes all the greater. 39. Desai J., contemplated Value-packing on the premise that a preponderant role for the judicial wing in the appointments raises a question of essential political doctrine that the very power of Judicial Review, with the concomitant jurisdiction to defeat the will of the people by striking down laws enacted by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e them. The learned author, even in the American context, reiterated the imperative of Judicial Review to make the provisions of a Constitution more than mere maxims of political morality and that the universal sense of America has come to realise that there can be no Constitution without law administered through the Supreme Court . Referring to Chief Justice Marshall's pronouncement in the Marbury case, the learned author said: That case is now rightly considered as the very keystone of the American constitutional arch, for, in it, the U.S. Supreme Court first ruled that it possessed the authority to review the constitutionality of statutes. Yet, when the case came before the Supreme Court, it seemed to present anything but the question of judicial review. Marbury v. Madison is crucial in the history of American public law because it laid down the doctrine of judicial review which has since been the foundation of the constitutional structure. Marbury v. Madison was the first case to establish the Supreme Court's power to review the constitutionality of legislative acts and it did so in terms so firm and clear that the power has never since been legally doubted. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat makes constitutional provisions more than mere maxims of political morality. [Emphasis Supplied] [See: Some makers of American Law ; Tagore Law Lectures - pages 35 37] In India, however, the judicial institutions, by tradition, have an avowed a-political 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 constitutional values can not be whittled down by calling the appointment of judges as an executive act. 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 constitutional functionaries are collectively repositories. The executive, on whose advice the President acts, as a participant in the process has its own important and effective role. To say that the power to appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 'consultation' is to safeguard the independence of the judiciary and to ensure selection of proper persons. The matter is not, therefore, to be considered that the final say is the exclusive prerogative of the executive Government. The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role. Consultation should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation. Who is able to decide the qualities of lawyers proposed to be elevated to the Bench more than the judges of the Superior Courts before whom they practice? There are preponderant and compelling considerations why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable. 45. The view which the four learned Judges shared, in Gupta's case, in our opinion, does not recognise the special arid pivotal position of the Institution of the Chief Justice of India. 46. The correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength. 50. We are aware of the position that the setting up of the National Judicial Commission through a Constitutional Amendment is in contemplation. In the event of the Amendment being carried and a National Judicial Commission being set up, the correctness of the ratio in S.P. Gupta's case of the status of the Chief Justice of India may not be necessary to be examined in 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 clement of immediacy in the matter. We, therefore, suggest that the writ petition on the two issues indicated above may be taken up for hearing at an early date and preferably before the end of this year. We hope and trust that the Supreme Court Advocates-on-Record Association would continue to evince interest in the matter but if our expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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