Holding

Section 16’s requirement of consultation is satisfied by an Acting Chief Justice and does not require consultation with two senior judges, so the appointment stands.

Summary

The Himachal Pradesh government sought to fill a vacancy for President of the State Consumer Redressal Commission by appointing a sitting High Court judge, Justice Surinder Swaroop. The government initially sent a proposal to the Chief Justice, but the High Court pointed out that the appointment process should be initiated by the Chief Justice, not the executive. After the Chief Justice’s office was vacant, the Acting Chief Justice consulted and recommended the appointment, which was made by the Governor. Public‑interest petitioners challenged the appointment, arguing that the process violated Section 16 of the Consumer Protection Act, that an Acting Chief Justice could not fulfil the statutory ‘consultation’, and that the Chief Justice must consult his two senior judges as required in earlier Supreme Court decisions. The Supreme Court held that the statutory consultation under Section 16 is distinct from the constitutional consultation under Article 217, that an Acting Chief Justice may validly perform the duties of the Chief Justice for this purpose, and that there is no requirement to consult two senior judges. Consequently, the appointment was upheld and the writ petition dismissed.

Issues considered

The meaning of ‘consultation’ under Section 16 of the Consumer Protection Act and whether it must be with the Chief Justice or can be with an Acting Chief Justice.
Whether the appointment process for the President of a State Consumer Commission must be initiated by the Chief Justice rather than the executive.
Whether the Chief Justice is required to consult his two senior judges before recommending a candidate, as per earlier Supreme Court precedents.

Legislation cited

Constitution of Indias. 145(3), s. 217, s. 223
Consumer Protection Act, 1986s. 16

Subjects

Consumer Protection ActSection 16State Consumer Redressal Commissionappointment of judgesChief JusticeActing Chief JusticeconsultationArticle 217Article 223public interest litigation

Judgment

SHRI ASHOK TANWAR AND ANR. A
v.
STATE OF H.P. AND ORS.

DECEMBER 17, 2004
B
[R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN,
B.N. SRIKRISHNA AND G.P. MATHUR, JJ.]

Constitution of India, 1950-Article 217 and 223.

High Court-Acting Chief Justice-Power and duties of-Head, no C
restriction or limitation in performation of duties of the Chief justice.

Consumer Protection Act, 1986.

Section 16-State Consumer Redressal Commission-President-Ap- D
pointment-Process-Jnitiation of-Consultation with the Acting ChiefJustice-
Held, valid.

Considering the impending vacancy arising to the post of the
President of the H.P. State Consum".r Redressal Commission, state
government decided to take the services of a sitting judge of the High E
Court of Himachal Pradesh for which a request was made that the
proposal of the state government be placed before the Hon'ble Chief
Justice, High Court for consideration and recommendation of the name
proposed. Reference made by the state government not being in con-
formity with the provisions of law, High court addressed a letter to the F
state government, pointing out the defect, that when the appointment
was to be made the proposal was to be initiated as per the procedure
followed for the appointment of High Court Judge. State Government,
accordingly, wrote the second letter to the Registrar General of the High
Court requesting the Hon'ble Chief Justice to initiate the process for
filling up the vacancy to the post of President of the State Commission G
in accordance with the provisions of the Act and the law laid down by
this Court in Ashish Handa, Advocate v. Hon 'ble the Chief Justice of High
Court of Punjab & Haryana and Others. Registrar General of the High
Court conveyed recommendation of the Chief Justice for appointment
of the name proposed as President of the State Commission holding H
1065
1066 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A additional charge of the post, further stating that the steps may be taken
for appointment of President of the State Commission in accordance
with law and rules. Appellants, residents of the state, claiming to espouse
public interest challenged the appointment as being not in accordance
with law and was contrary to the decisions of this Court and sought for
B writ of quo warranto and to quash the appointment of mainly contending
that there was a defect in the initiation process for appointment to the
post of President of the State Commission on the ground that the process
was initiated by the State Government instead of Chief Justice and that
the Acting Chief Justice did not consult the two senior most Judges of
the High Court before recommending the name for appointment as the
c President of the State Commission. Reliance on the decisions of Ashish
Handa, Advocate v. Hon 'ble the Chief Justice of High Court of Punjab &
Haryana and Others (supra) and Supreme Court Advocates-on-Record
Association and Others v. Union of India was placed. High Court dis-
missed the writ petition.
D
It was contended by the appellant that recommendation made by
the Acting Chief Justice without consulting two senior most judges as
required in the light of decisions of this Court in Supreme Court Advo-
cates.:.on Record Association (supra) and Ashish Handa (supra), the High
Court ought to have allowed the writ petition and quashed the appoint- ,
E ment of respondent No. 3. It was also contended that th~ Acting Chief
Justice could not initiate the process for appointment under Section 16
of the Act as it is only the Chief Justice, who is to be consulted; the
Acting Chief Justice is not appointed to the Office of Chief Justice, he
is only to discharge the duties of the Chief Justice. Reliance was placed
F on the decision of High Court of Allahabad in Bishal Chand Jain v.
Chattur Sen and Others.

Dismissing the appeal, the Court ..
HELD : I.I. The process of consultation envisaged under Section
G 16 of the Act can neither be equated to the constitutional requirement
of consultation under Article 217 of the Constitution oflndia in relation
to appointment of a Judge of a High Court nor can it be placed on the
same pedestal. Consultation by the Chief Justice of the High Court with
two senior most Judges in selecting a suitable candidate for appointment ~·
H as a Judge is for the purpose of selecting the best person to the high
SHRI ASHOK TANWAR v. STATE 1067

office of a Judge of the High Court as a constitutional functionary. A
Consultation with the Chief Justice of the High Court in terms of Section
16 of the Act is a statutory requirement. 11077-C-D]

1.2. Expression 'consultation' used in Article 217 of the Constitu-
tion of India in relation to appointment of High Court Judges cannot B
be read in the same way into 'consultation' as contemplated under
Section 16 of the Act in the light of what is stated above in the Supreme
Court Advocates-on-Record Association. The meaning of the word 'con-
sultation' must be given in the context of an enactment. If the argument
that the consultation process in regard to appointment of a Judge or
retired Judge of High Court to the State Commission under Section 16 C
must be in the same manner as required under Article 217 of the
Constitution, it will lead to anomalous situation. [1081-C-D]

Ashish Handa, Advocate v. Hon 'ble the Chief Justice of High Court
of Punjab & Haryana and Others., JT (1996) 3 SC 248 and Supreme Court D
Advocates-on-Record Association and Others v. Union of India, [1993) 4
sec 441, relied on.
1.3. Under Article 217(1) of the Constitution, consultation contem-
plated with constitutional functionaries mentioned therein is for the
purpose of appointment ofa Judge ofa High Court and not for appoint- E
ment ofa person as the President of the State Commission under Section
16 of the Act. [1081-El

1.4. Insistence on 'consultation' by the Chief Justice of a High Court
with his two senior most colleagues in the High Court for the purpose of F
Section 16 of the Act is unwarranted. It is clarified that the consultation
for the purpose of Section 16 of the Act in relation to the appointment of
a Judge or a retired Judge of a High Court as President of the State
Commission cannot betaken or equated to consultation process as required
under Article 217 of the Constitution. [1081-G-H; 1083-F)
G
1.5. Impression that Chief Justice of a High Court has to consult
his two senior most colleagues before recommending a sitting or retired
Judge for appointment as President of a State Commission as per
Section 16 of the Act is not correct and not approved. To put it posi-
tively, for the purpose of Section 16 of the Act a Chief Justice ofa High H
1068 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Court need not consult his two senior most colleagues in the High Court
for recommending a sitting or retired Judge of a High Court for ap-
pointment as President of a State Commission that in the matter of
appointment of a sitting or retired Judge of a High Court as President
of the State Commission and the process must be initiated by the Chief
B Justice under Section 16 of the Act and 'consultation' contemplated in
the said Section is 'consultation' only with the Chief Justice of the High
Court and not with the collegium. (1083-G-H; 1084-C-D]

1.6. Argument that the 'consultation' under Section 16 of the Act
should be with the Chief Justice of the High Court and not with the
C Acting Chief Justice is not acceptable and this argument does not pose
any serious problem having regard to the clear constitutional provision.
(1084-D)

Bishal Chand Jain v. Chattur Sen and Others, AIR (1967) All. 506,
distinguished.
D
l. 7. When Article 223 of the Constitution in specific terms confers
powers on acting Chief Justice to discharge the functions of the office
of Chief Justice without any limitation or rider, it cannot be accepted
that an acting Chief Justice cannot perform the duties expected to be
performed by him under Section 16 of the Act. No restriction or limi-
E tation in performance of duties by acting Chief Justice can be read into
the said Article. The Article also does not indicate as to which of the
duties of the Chief Justice can be performed or which of the duties
cannot be performed by the acting Chief Justice. Appointment of one
or the other Judges of a High Court as acting Chief Justice is meant to
F carry on the work of the High Court and the judiciary in the State.
Consultation with acting Chief Justice under Section 16 of the Act is to
be taken as consultation with the Chief Justice of High Court. Powers
conferred under Article 223 of the Constitution on an acting Chief
Justice to perform the duties of the Chief Justice is available for the
G purpose of Section 16 of the Act. (1086-F-G; 1087-D]

· 2.1. This apart, the interpretation ofa provision of the Constitution
having regard to various aspects serving the purpose and mandate of
the Constitution by this Court stands on a separate footing. (1077-D]

H R.C. Poudyal v. Union of India and Others, (1994] Supp. 1 SCC 324
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1069

and Ms. Aruna Roy and Other v. Union of India and Others, AIR (2002) A
SC 3176, referred to.

2.2. No statutory provision can stand in the way of constitutional
provision in case of conflict between them. [
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8248 of
2004.

From the Judgment and Order dated 30.7.2001 of the Himachal Pradesh
High Court in C.W.P. No. 647 of 2000.
c
G.E. Vahanvati, Solicitor General, (NP), Amarendra Saran, Additional
Solicitor General, Ramji Srinivasan, Ms. R. Hakeem, Sajith P. Gagan Sareen
for Attorney General of India, K.P. Singh and L.R. Rath, Mahabir Singh,
Ajay Pal, Ms. Madhusmita Bora, Nikhil Jain, Gagandeep Sharma, Amit
Veer Singh, Balaji Srinivasan V. Sudeer, MBRS. Raju, Ms. S. Sunita, S. D
Sachin, J.B. Ravi and Riju Raj Jamawal for the appearing parties.

The Judgment of the Court was delivered by

SHIV ARAJ V. PATIL, J. : Leave granted.
E
A Bench of three learned Judges of this Court made the following order
of reference on 7th March, 2002: -

"In the present case, under Section 16 of the Consumer Pro-
tection Act, the President of the State Consumer Disputes Redressal F
Commission has to be appointed in consultation with the Chief
Justice of the State. The question which arises is whether consul-
tation with an Acting Chief Justice is sufficient compliance or not.
This question involves interpretation of Articles 217 and 223 of the
Constitution and as there is no decision of this Court which can be
applied in the present case, then by virtue of Article 145(3) of the G
Constitution this case involving the said question of Jaw involving
interpretation of the Constitution should be heard by a Bench ofnot
less than five learned Judges.

Let the papers be piaced before the Hon'ble the Chief Justice fl
1070 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A of India for appropriate orders for hearing of the case as expedi-
tiously as possible and within a period of four months."

Articles 217 to the extent relevant and 223 of the Constitution oflndia
read: -

B "2 I 7. Appointment and conditions ofthe office ofa Judge ofa High
Court.- (I) Every Judge of a High Court shall be appointed by
the President by warrant under his hand and seal after consultation
with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the
c 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 years:

"223. Appointment of acting Chief Justice.- When the office of
Chief Justice of a High Court is vacant or when any such Chief
D
Justice is by reason of absence or otherwise, unable to perform the
duties of his office, the duties of the office shall be performed by
such one of the other Judges of the court as the President may
appoint for the purposes."

E On 3rd March, 2000 The Financial Commissioner-cum-Secretary (F&S),
Government of Himachal Pradesh, addressed a letter to Registrar General,
Himachal Pradesh High Court stating that Justice P.N. Nag (retired Judge
of the High Court} shall cease to hold the post of President of H.P. State
Consumer Disputes Redressal Commission, Shimla (for short 'the State
F Commission) on 4.3.2000, after attaining the age of67 years. In accordance
with the provisions contained in The Consumer Protection Act, 1986 (for
short 'the Act'), a person who is or has been a Judge of High Court can be
appointed as President of the State Commission, after consultation with the
Chief Justice of the High Court. After consideration the State Government
decided to take the services of Justice Surinder Swaroop, a sitting Judge of
G the High Court of Himachal Pradesh for appointment as President of the
State Commission. Therefore, he requested that the proposal of the State
Government may kindly be placed before the Hon'ble Chief Justice, High
Court for consideration and recommending the name of Justice Surinder
Swaroop for appointment as President of the State Commission 0'1 part-time
H basis.
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1071

On the same day the High Court addressed a letter to the State Gov- A
ernment indicating that there was defect in the process adopted by the State
Government and that the reference made by the State Government was not
in conformity with the provisions of law as the executive is expected to
approach the Hon'ble Chief Justice when the appointment was to be made,
to initiate the proposal as per the procedure to be followed for appointment B
of High Court Judge.

The State Government wrote the second letter to the Registrar General
of the High Court requesting the Hon'ble Chief Justice to initiate the process
for filling up the vacancy to the post of President of the State Commission
in accordance with the provisions of the Act and the law laid down by this C
Court in Ashish Honda, Advocate v. Hon 'ble the ChiefJustice of High Court
of Punjab & Haryana and Others'.

On 7th March 2000 the Registrar General of the High Court addressed
a letter to the Financial Commissioner-cum-Secretary (F&S) of the State D
Government conveying recommendation of the Chief Justice for appoint-
ment of Mr. Justice Surinder Swaroop, a sitting Judge of the High Court,
as President of the State Commission holding additional charge of the post.
In the said letter it was also stated that the steps may be taken for appoint-
ment of Mr. Justice Surinder Swaroop (respondent No. 3 herein) as President
of the State Commission in accordance with law and rules. Thereafter, a E
notification dated 13th March, 2000 was issued by the Governor, Himachal
Pradesh, appointing Justice Surinder Swaroop as President of the State
Commission.

Appellant No. 1, a permanent resident of Namol and a practicing F
advocate at Solan and appellant No. 2, a retired Research Officer resident
of Shimla, filed Civil Writ Petition No. 647 of 2000 in the High Court
claiming to espouse public interest stating that they were interested in proper
functioning of the State Commission. According to them the appointment
ofrespondent No. 3 - Justice Surinder Swaroop - as President of the State
.Commission was not in accordance with law and was contrary to the G
decisions of this Court. They sought for writ of quo warranto to the
respondent No. l to quash the appointment of respondent No. 3 mainly
contending that there was a defect in the initiation process for appointment
-~ ..
I. JT (1996) 3 SC 248. H
1072 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A to the post of President of the State Commission on the ground that the
process was initiated by the State Government instead of Chief Justice and
that the Acting Chief Justice did not consult the two senior most Judges of
the High Court before recommending the name of respondent No. 3 for
appointment as the President of the State Commission. In support of these
B contentions they placed reliance on the decisions of this Court in Ashish
Handa, Advocate v. Hon 'ble the Chief Justice of High Court of Punjab &
Haryana and Others (supra) and Supreme Court Advocates-on-Record
Association and Others v. Union of India 2.

Respondent Nos. I and 3 resisted the writ petition and respondent No.
c 2, the High Court, made the position clear having regard to the records.
The High Court, after consideration of the respective contentions
advanced on behalf of the parties and in the light of the decisions of this
Court, held that the case of Ashish Handa (supra) related to the initiation
D of 'process', which was required to be followed in making appointment of
President of the State Commission, and that such process should not have
been initiated by the Government but it ought to have been initiated by the
Chief Justice. On facts the High Court found that although initially the
process was started by the Government proposing the name of respondent
No. 3, respondent No. 2, however, was aware of the legal position and it
E immediately drew the attention of respondent No. l that the procedure
adopted by respondent No. l was not in accordance with law. Therefore,
second letter was addressed by respondent No. l to respondent No. 2.
Respondent No. 2 on receipt of the second letter made the recommendation
to appoint respondent No. 3 as President of the State Commission. On that
F issue the High Court held that the action taken either by respondent No. l
or by respondient No. 2 could not be said to be contrary to law or the
directions issued by this Court in the case of Ashish Handa (supra). Con-
sequently the writ petition was dismissed. Hence, this appeal.

The High Court, in the impugned judgment, dealing with initiation of
G the process and consultation for appointment of respondent No. 3 as Presi-
dent of the State Commission, has observed, thus: -

"The counsel for the petitioners contended that appointment of a

H 2. [1993] 4 sec 441.
SHRI ASHOK TANWAR v. STATE (PATIL, J.) 1073

person as President to the State Commission, as ruled by the Su- A
preme Court in Ashish Handa, has to be made in accordance with
the provisions of Article 217 of the Constitution. In other word$,
before an appointment of a sitting or retired Judge of a High Court
is made as the President of the State Commission, there should be
consultation at three levels; firstly, consultation with the Chief B
Justice of India, secondly, consultation with the Governor of the
State and thirdly, consultation with the Chief Justice of the High
Court concerned.

xxx xxx xxx xxx
c
Hence, ifthe submission of the learned counsel is upheld, the
result would be as under:

Before the appointment of respondent No. 3 by respondent
No. 1 as the President of the State Commission, respondent No. 1 D
ought to have consulted the Governor of the State (the State Gov-
ernment), (which is the appointing authority in the instant case), the ·
Chief Justice of India (not the Chief Justice of India in his indi-
vidual capacity but collectively, along with the collegium), the
Chief Justice of this Court (not the Chief Justice in his individual
capacity, but with the collegium, that is, his two senior most col- E
leagues) and also a Judge or Judges, who is1are in the Supreme
Court who is/are likely to be conversant with the affairs of this High
Court. Unless the above procedure is strictly adhered to, the
appointment of respondent No. 3 as the President of the State
Commission cannot be held legal and lawful." F
In relation to the law laid down by this Court in Ashish Handa the High
Court noted that it was not the case before the High Court that the Chief
Justice had consulted his two senior most colleagues before approving the
name of Justice Agnihotri and yet the appointment was not interfered with.
The High Court also expressed that in Ashish Handa this Court has laid G
down that under Section 16 of the Act process for appointment of a sitting
or retired Judge as President of the State Commission should be initiated
by the Chief Justice as is done in the case of appointment of a Judge to a
High Cou1t under Article 217 of the Constitution and that such process
should not be initiated by the Government. H
1074 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A Before us, learned counsel for the appellants urged that: -

I. since the re~ommendation to appoint respondent No. 3 was made by
the Acting Chief Justice without consulting two senior most Judges as
required in the light of decisions of this Court in Supreme Court
Advocates-on-Record Association (supra) and Ashish Handa (supra),
B the High Court ought to have allowed the writ petition and quashed
the appointment of respondent No. 3.

2. The Acting Chief Justice could not initiate the process for appointment
of respondent No. 3 under Section 16 of the Act as it is only the Chief
c Justice, who is to be consulted; the Acting Chief Justice is not ap-
pointed to the 0ffice of Chief Justice, he is only to discharge the duties
of the Chief Justice. Reliance was placed on the decision of High Court
of Allahabad in Bishal Chand Jain v. Chattur Sen and others 3 •

In opposition learned counsel for the respondents in their
D arguments reiterated the submissions that were made before the High Court
and supported the impugned judgment for the very reasons stated therein.

The learned counsel for the Union of India and for Attorney General
submitted that consultation should be as stated in two- decisions of this Court
in Ashish Handa and Supreme Advocates-on-Record Association (supra),
E i.e., the Chief Justice ofa High Court has to consult two senior most Judges
in the case of appointment of a sitting or retired Judge of the High Court
as President of the State Commission. As regards the discharge of duties
of the Chief Justice by the Acting Chief Justice, the submission was that the
Acting Chief Justice could perform all the functions of the Chief Justice by
F virtue of Article 223 of the Constitution, otherwise there will be practical
difficulty leading to anomalous situation in cases where the Chief Justices
are not appointed for some reasons and Acting Chief Justices continue for
longer period.

Section 16 of the Act, to the extent relevant, reads: -
G
"16. Composition of the State Commission. - (1) Each State Com-
mission shall consist of, -

(a) a person who is or has been a Judge of a High Court, appointed

H 3. AIR (1967) All. 506.
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1075

by the State Government, who shall be its President : A

Provided that no appointment under this clause shall be made
except after consultation with the Chief Justice of the High Court."

In the case of Ashish Handa the question that came up for consid- B
eration was as to initiation of process in the matter of appointment. A
person, who is or has been a Judge of a High Court, shall be appointed by
the State Government as President of the State Commission after consul-
tation with the Chief Justice of the High Court as per Section 16 of the Act.
This Court held that the executive is expected to approach the Chief Justice
when the appointment is to be made for taking the steps to initiate the C
proposal. Para 3 of the judgment reads: -

"3. The Consumer Protection Act, 1986 is an Act to provide for
better protection of the interests of consumers "and for that purpose
to make provision for the establishment of consumer councils and D
other authorities for the settlement of consumers' disputes and for
matters connected therewith". The National Commission, the State
Commission and the District Forum are established as the agencies
for the redressal of consumer disputes by Section 9 of the Act.
Section IO of the Act provides for composition of the District,
Forum, Section 16 for the State Commission and Section 20 for the E
National Commission. The scheme is that these three agencies
constituted for redressal of consumer disputes at different levels
have as its President a person who is, or has been a Judge at the
~corresponding level. This is so because the function of these agen-
cies is primarily the adjudication of consumer disputes and, there- F
fore, a person from the judicial branch is considered to be suitable
for the office of the President. The appointment to the office of the
President of the State Commission is to be made "only after con-
sultation with the Chief Justice of the High Court" and to the office
of the President of the National Commission "after consultation
with the Chief Justice of India". Such a provision requiring prior G
consultation with the Chief Justice is obviously for the reason that
he is the most suitable person to know about the suitability of the
person to be appointed as the President of the Commission. The
provisions in Section 16(1)(a) for appointment of the President of
the State Commission and in Section 20(1 )(a) for appointment of H
A
1076 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

the President of the National Commission are in pari materia and
-
have to be similarly construed. The construction of the proviso in
Section 16(1)(a) and that in Section 20(1)(a) must be the same
because of the identity of the language. The expression "after
consultation with the Chief Justice of the High Court" and "after
consultation with the Chief Justice of India" must be construed in
B
the same manner as the expression "after consultation with the
Chief Justice of India, ... the Chief Justice of the High Court" in
Article 2 I 7 of the Constitution of India made in Supreme Court
Advocates-on-Record Assn. v. Union of India, [I 993] 4 SCC 44 I].
Accordingly, the opinion of the Chief Justice of the High Court and
c the requirement of consultation with him according to the proviso
in Section 16(1 )(a) must have the same status as that of the Chief
. Justice of the High Court in the appointment of a High Court Judge
under Article 2 I 7 of the Constitution of India; and the process of
appointment to the office of the President of the State Commission
D must also be similar. It is unnecessary to restate the same which
is summarised in the majority opinion in theJudges-II case [1993]
4 SCC 44 I. This is necessary to maintain independence of the
judiciary and to avoid any possibility of a sitting or a retired Judge
depending on the executive for such an appointment. Our attention
was drawn to certain observations in Sarwan Singh Lamba v. Union
E of India, [1995] 4 SCC 546: [1995] SCC (L&S) 546: (1995) 30
ATC 585, to suggest that the name for appointment to the Admin-
istrative Tribunal may be suggested even by the executive which
may have the effect of initiating the proposal. In the facts of that
case, substantial compliance of the requirement of approval by the
F Chief Justice oflndia was found proved and, therefore, the appoint-
ments were upheld. The requirement of consultation with the Chief
Justice in the proviso to Section 16(l)(a) and Section 20(1)(a) of
the Consumer Protection Act being similai''to that in Article 217,
the principles enunciated in the majority opinion in the Judges-II
case must apply, as indicated earlier, even for initiating the pro-
G posal. The executive is expected to approach the ChiefJustice when
the appointment is to be made for taking the steps to initiate the
proposal. and the procedure followed should be the same as for
appointment of a High Couti Judge. That would give greater cred-
ibility to the appointment made."
H (emphasis supplied)
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1077
.. _,
The aforementioned decision of this Court is to be read and understood A
on the facts and in the context in relation to initiation of the process for the
appointment of a sitting or retired Judge as the President of .the State
Commission. The High Court in the impugned judgment also states that the
judgment of this Court in Ashish Handa should not be understood or
construed as insisting upon to follow the same procedure, which has to be B
, followed for appointment of a Judge of a High Court under Article 217 of
the Constitution. If the judgment in Ashish Handa is to be read in the way
the appellants projected, it will lead to anomalous situation and further it
does not stand to reason.

The process of consultation envisaged under Section 16 of the Act can C
neither be equated to the constitutional requirement of consultation under
Article 217 of the Constitution oflndia in relation to appointment ofa Judge
of a High Court nor can it be placed on the same pedestal. Consultation
by the Chief Justice of the High Court with two senior most Judges in
selecting a suitable candidate for appointment as a Judge is for the purpose D
of selecting the best person to the high office of a Judge of the High Court
as a constitutional functionary. Consultation with the Chief Justice of the
High Court in terms of Section 16 of the Act is a statutory requirement. This
apart, the interpretation of a provision of the Constitution having regard to
various aspects serving the purpose and mandate of the Constitution by this
Court stands on a separate footing. A constitution unlike other statutes is E
meant to be a durable instrument to serve through longer number of years,
i.e., ages without frequent revision. It is intended to serve the needs of the
day when it was enacted and also to meet needs of the changing conditions
of the future. This Court in R.C. Poudyal v. Union of India and Others4,
in paragraph 124, observed thus: - F

- "124. In judicial review of the vi res of the exercise of a constitu-
tional power such as the one under Article 2, the significance and
importance of the political components of the decision deemed fit
by Parliament cannot be put out of consideration as long as the
conditions do not violate the constitutional fundamentals. In the G
interpretation of a constitutional document, "words are but the
framework of concepts and concepts may change more than words
themselves". The significance of the change of the concepts them-

4. [1944] Supp. 1 sec 324. H
1078 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A selves is vital and the constitutional issues are not solved by a mere
appeal to the meaning of the words without an acceptance of the
line of their growth. It is aptly said that "the intention of a
Constitution is rathe:- to outline principles than to engrave details"."

B In the first B.N. Rau Memorial Lecture on 'Judicial Methods' M. Hidayatullah,
J. observed, "More freedom exists in the interpretation of the Constitution
than in the interpretation of ordinary laws. This is due to the fact that the
ordinary law is more often before courts, that there are always dicta of
judges readily available while in the domain of constitutional law there is
again and again novelty of situation and approach. Chief Justice Marshall
c while deciding the celeberated Mc. Culloch v. Maryland (4 Wheaton 316,
407) made the pregnant remark- "We must never forget 4Jhat it is the
constitution we are expounding"- meaning thereby that il is a question
of new meaning in new circumstances. Cardozo in his lectures aiso said:
"The great generalities ofthe Co1:1§j_itution have a content and a significance
D that vary from age to age." Chie.f Justice Marshall-in ·9'fc· Culloch v.
Maryland declared that the constitution was 'intended-,~endure for ages to
come, and consequently to be adapted.,t~/the vari~~rises of human
affairs .... ' In this regard it is worthwhtie .fo ·see t11{o'tisfrations made in
. 4 ·- .
paragraphs 324 to 326 in Supreme Cour.t;.Advocites":on-Record As-socia-
tion:-
E
"324. 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 cons Mer what is the judiciary today and not what
F 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 vf 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.
G
" 325. 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, 156 (Can) :

H "It is clear that the meaning of 'unreasonable' cannot be
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1079

determined by recourse to a dictionary, nor for that A -
matter, by reference to the rules of statutory construc-
tion. The task of expounding a constitution is crucially
different from that of construing a statute. A statute
defines present rights and obligations. It is easily en-
acted and as easily repealed. A Constitution, by contrast, B
is drafted with an eye to the future. Its function is to
provide a continuing framework for the legitimate exer-
cise of governmental power and, when joined by a Bill
or a Charter of Rights, for the unremitting protection of
individual rights and liberties. Once enacted, its provi-
sions cannot easily be repealed or amended. It must, c
therefore, be capable of groWth and development over
time to meet new social, political and historical realities
often unimagined by its framers. The judiciary is the
guardian of the Constitution and must, in interpreting its
provisions, bear these considerations in mind. Professor D
Paul Freund expressed this idea aptly when he admon-
ished the American Courts 'not to read the provisions of
the Constitution like a last will and testament lest it
become one'."

326. The constitutional provisions cannot be cut down by technical E
construction rather it has to be given liberal and meaningful inter-
pretation. The ordinary rules and presumptions, brought in aid to
interpret the statutes, cannot be made applicable while interpreting
the provisions of the Constitution. In Minister of Home Affairs v.
Fisher, [I 979} 3 All ER 21 : [I 980) AC 319) dealing with Bermu- F
dian Constitution, Lord Wilberforce reiterated that a Constitution
is a document "sui generis, calling for principles of interpretation
of its own, suitable to its character"."
(emphasis supplied)

This Court in Ms. Aruna Roy and Others v. Union of India and G
Others 5 recalled the famous words of the Chief Justice Holmes that
"spirit of law is not logic but it has been experience" and observed
that these words apply with greater force to constitutional law. In

5. AIR(2002) SC 3176. H
1080 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

the same judgment this Court expressed that Constitution is a
permanent document framed by the people and has been accepted
by the people to govern them for all times to come and that the
words and expressions used in the Constitution, in that sense, have
no fixed meaning and must receive interpretation based on the
experience of the people in the course of working of the Consti-
B
tution. The same thing cannot be said in relation to interpreting
the words and expressions in a statute.

Verma, J. (as he then was) speaking for the majority in the case of
Supreme Court Advocates-on-Records Association, in paragraph
c 433, has stated, thus: -

"433. It is with this perception that the nature of primacy, if any,
of the Chief Justice of India, in the present context, has to be
examined in the constitutional scheme. The hue of the word 'con-
sultation', when the consultation is with the Chief Justice of India
D as the head of the Indian Judiciary, for the purpose of composition
of higher judiciary, has to be distinguished from the colour and the
same word 'consultation' may take in the context of the executive
associated in that process to assist iY! the selection of the best
available material."
E (emphasis supplied)

Pandian,J. in his concurring opinion in Supreme Court Advocates-on-
Records Association aforementioned, with regard to meaning of the word
'consultation' has observed that the derivative meaning of the word in the
context depended not merely on its ordinary lexicon definition but greatly
F 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 that word is used. In this
regard in paragraph 163 it is stated that: -

"The word 'consultation' is used in the context ofappointment
G 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 itemized in
the proceeding part of this judgment."
H (emphasis supplied)
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1081

Further, in paragraph 196 it is observed that in the background of the factual A
and legal position, meaning of the word 'consultation' cannot be confined
to its ordinary lexicon definition; its contents greatly vary according to the
circumstances and the context in which the word is used as in our Consti-
tution. In paragraph 195 it. is stated that the consultation with the Chief
Justice of India by the President is relatable to the judiciary and not to any B
other service; in the process of various constitutional appointments, 'con-
sultation' is required only to the judicial office in contrast to the other high
ranking constitutional offices.

It is thus clear that the expression 'consultation' used in Article 217 of the
Constitution oflndia in relation to appointment of High Court Judges cannot
c
be read in the same way into 'consultation' as contemplated under Section
16 of the Act in the light of what is stated above in the Supreme Court
Advocates-on-Record Association. The meaning of the word 'consultation'
must be given in the context of an enactment. If the argument that the
consultation process in regard to appointment of a Judge or retired Judge D
of High Court to the State Commission under Section 16 must be in the same
manner as required under Article 217 of the Constitution, it will lead to
anomalous situation. Under Article 217(1) of the Constitution, consultation
contemplated with constitutional functionaries mentioned therein is for the
purpose of appointment of a Judge of a High Court and not for appointment E
of a person as the President of the State Commission under Section 16 of
the Act. If the consultation to be made for appointment of a person as
President of the State Commission, as required under Section 16 of the Act,
is to be similar as under Article 217 of the Constitution, then, even in case
of appointment of a retired Judge as President of the State Commission, such
consultation has to be made with all constitutional functionaries, which does
F
not stand to reason. Hence, obviously for appointment of a person as
President of the State Commission consultation as required under Article
217 of the Constitution as against the requirement stated in Section 16 of
the Act is not necessary. If that be so not only opinion of two senior most
Judges of the High Court should be obtained but also the consultation should G
be made with other constitutional functionaries as contemplated under Article
217 of the Constitution including the Chief Justice of India. Hence insist-
ence on 'consultation' by the Chief Justice of a High Court with his two
senior most colleagues in the High Court for the purpose of Section 16 of
the Act, in our view, is unwarranted. H
1082 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A While dealing with the question of primacy of the opinion of the Chief
Justice of India in that context this Court held that such opinion of Chief
Justice is to be formed collectively after taking into account the views of
his senior colleagues, who are required to be consulted by him for the
formation of his opinion. As is evident from paragraph 450 of the same
B judgment consultation with the Chief Justice of India was introduced be-
cause of the realization that the Chief Justice is best equipped to know and
assess the worth of the candidate and his suitability for appointment as a
superior judge; and it was also necessary to eliminate political influence
even at the stage of the initial appointment of a judge. In order to select
the best candidate and to give primacy to the opinion of the Chief Justice
C this Court held that consultation with two senior most Judges of the High
Court was needed in the matter of recommending a candidate for appoint-
ment as Judge of the High Court. Under Section 16 of the Act only a person,
who is or has been a Judge of a High Court, is eligible to be appointed as
President of the State Commission.

D In the matter of appointment of Judges of the High Court, in paragraph
478 of the same judgment, it is stated, thus: -

"In matters relating to appointments in the High Courts, the
Chief Justice of India is expected to take into account the views of
his colleagues in the Supreme Court who are likely to be conversant
E
with the affairs of the concerned High Court. The Chief Justice of
India may also ascertain the views of one or more senior Judges
of that High Court whose opinion, according to the Chief Justice
of India, is likely to be significant in the formation of his opinion.
The opinion of the Chief Justice of the High Court would be entitled
F to the greatest weight, and the opinion of the other functionaries
involved must be given due weight, in the formation of the opinion
of the Chief Justice of India. The opinion of the Chief Justice of
the High Court must be formed after ascertaining the views of at
least the two seniormost Judges of the High Court."

G In regard to initiation of the process for appointment, in paragraph
4 78(10) it is stated: -

"(I 0) To achieve this purpose, and to give legitimacy and greater
credibility to the process of appointment, the process must be
H initiated by the Chief Justice of India in the case of the Supreme
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1083

Court, and the Chief Justice of the High Court in the case of the A
High Courts. This is the general practice prevailing, by convention,
followed over the years, and continues to be the general rule even
now, after SP. Gupta v. Union of India, [1981] Supp. SCC 87. The
executive itself has so understood the correct procedure, notwith-
standing SP. Gupta and there is no reason to depart from it when B
it is in consonance with the concept of the independence of the
judiciary."

In Ashish Handa this Court, having regard to what is stated above, held
that it is the Chief Justice of the High Court, who should initiate the process
in the matter of appointment of a Judge, sitting or retired, as President of C
the State Commission.

In that case, as already noticed above, this Court was dealing with
initiation of the process for appointment of a sitting or retired Judge as
President of the State Commission. It is in.that context this Court held that
D
the process must be initiated by the Chief Justice of the High Court and not
by the executive of the State. The reading of the judgment gives an
impression that the consultation process must be the same in respect of
appointment of a sitting or retired Judge to State Commission as is required
for appointment of a High Court Judge in terms of Article 217 of the
Constitution. Firstly, the said judgment should be read and understood in E
the context of that case, the question that arose for consideration and what
was really decided, i.e., initiation of process by the Chief Justice of the High
Court. To remove doubt, if any, we make it clear that the consultation for
the purpose of Section 16 of the Act in relation t0 the appointment of a Judge
or a retired Judge of a High Court as President of the State Commission F
cannot be taken or equated to consultation process as required under Article
217 of the Constitution, which, in our view, is the correct position. Certain
statements made by this Court in Ashish Handa, in para 3, give an impres-
sion that Chief Justice of a High Court has to consult his two senior most
colleagues before r~commending a sitting or retired Judge fot appointment
as President of a State Commission as per Section 16 of the Act. In our G
view that is not the correct position and we do not approve the same. To
put it positively, we state that for the purpose of Section I 6 of the Act a
Chief Justice of a High Court need not consult his two senior most col-
leagues in the High Court for recommending a sitting or retired Judge of
a High Court for appointment as President of a State Commission. H
1084 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

f,i.. We must also keep in mind one more aspect. Under Article 217 of the
Constitution for the purpose of appointment of a Judge to a High Court in
view of decisio_n in Supreme Court Advocates-on-Records Association and
that too interpreting the constitutional provisions to maintain the independ-
ence of judiciary and to select the best of the persons as judges such a
B procedure is adopted. A person to be appointed as President of the State
Commission has to be necessarily a sitting or a retired Judge of a High Court
and not that any person can be appointed as President of the State Commis-
sion. This being the position, it does not stand to the reason as to why again
in respect of a sitting or retired Judge of a High Court the whole process
contemplated under Article 217 of the Constitution must be resorted to. To
C put in clear terms so as to remove any doubt we state that in the matter of
appointment of a sitting or retired Judge of a High Court as President of the
State Commission process must be initiated by the Chief Justice under
Section 16 of the Act and 'consultation' contemplated in the said Section
is 'consultation' only with the Chief Justice of the High Court and not with
D the collegium.

Argument that the 'consultation' under Section 16 of the Act should
be with the Chief Justice of the High Court and not with the Acting Chief
Justice is not acceptable and this argument does not pose any serious
problem having regard to the clear constitutional provision. The decision
E in Bishal Chand Jain v. Chattur Sen and Others (supra), cited on behalf of
the appellants does not help them for the reasons more than one. That
decision was on the facts of that case and the question that has arisen for
consideration in the present case did not arise there even remotely. In that
case plaintiff filed first appeal against the judgment and decree of Civil
F Judge made in the original suit. In the first appeal a preliminary objection
was raised on behalf of the appellant himself to the effect that the High Court
was not properly constituted and that appeal could not be heard on the ,-
ground that the office of the Chief Justice of the High Court fell vacant as
a result of the elevation of Mr. Justice V. Bhargava, Chief Justice of that
High Court to the Bench of this Court; Nasirullah Beg, J., a senior most
G Judge of the Court was appointed as Acting Chief Justice of the High Court,
but as oath of office had not been taken by him, the High Court could not
be deemed to be properly constituted. Alternatively, there was no Chief
Justice at that time and thus the Court was not properly constituted. It was
in that context the Division Bench of the Allahabad High Court, in paragraph
H 7, has stated thus: -
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1085

"(7) We are, however, of the view that Article 223 of the Consti- A
tution does not contemplate the appointment of a Chief Justice of
a High Court or an appointment to the_ office of Chief Justice of
a High Court. In spite of such appointment being made under
Article 223, the office of the Chief Justice remains vacant till a fresh
appointment is made to that office. It is on account of the existence B
of a vacancy in the office of Chief Justice that one or the other
Judges of the High Court is appointed by the President for the
purpose of performing the duties of the office of Chief Justict:. If
such appointment is to be held to put an end to the vacancy, then
the exigency of such an appointment ceases to exist. It, therefore,
follows that exercise of powers under Article 223 of the Constitu• C
tion by the President does not result in an appoint!Ilent to the office
of Chief Justice and in spite of such appointment, the office of the
Chief Justice remains vacant. All that happens is that during the
continuance of that vacancy, the duties of that office are to be
performed by one or the other Judges of the ·High Court as the D
President may appoint for the purpose. The word "temporarily"
used in Article 224 clause (2) governs the words "to act". The
language of clause (2) of Article 224, therefore, does not mean that
an appointment of a Judge of a High Court-to perform the duties
of the office of the Chief Justice under Article 223, is the appoint-
ment of a temporary Chief Justice. E

It is true that both in its marginal note and Article 223 the words
"appoint" or "appointment" has been used. But from this it does
not necessarily follow that the appointment is an appointment to th~
office of the Chief Justice. In the marginal note, it is clear that the F
appointment is n<;>t of a 'Chief Justice' but of 'an acting Chief
Justice'. In the Article itself the word "appoint" relates to the
appointment of such of the other Judges of that Court as the
President may choose for the purpose of performance of the duties
of the office of Chief Justice. It is only when the appointment is
not an appointment to the office of Chief Justice, that it could be G
said to be an appointment of one or the other Judges of that Coulit
for the purpose of performing the duties of the office of Chief
Justice. We have, therefore, no hesitation in coming to the con-
clusion that an appointment of one or the other Judges of the High
Court to perform the duties of the office of Chief Justice when that H
1086 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A office is vacant, is not the appointment of a Chief Justice to that
office. It really results in an arrangement for the performance of
the duties of the vacant office of the Chief Justice pending a fresh
appointment to the office of Chief Justice."

B A careful reading of the paragraph extracted above shows that an
appointment of one or the other Judges of the High Court to perform the
duties of the office of Chief Justice really results in an arrangement for the
performance of the duties of the vacant office of the Chief Justice pending
fresh appointment to the office of the Chief Justice. In that case the view
was that even if an acting Chief Justice is appointed under Article 223 of
C the Constitution for performance of the duties of the Chief Justice, the office
of Chief Justice still remains vacant. This also shows that one or the other
Judges of the High Court can perform the duties of the Chief Justice.

In the case on hand we have to consider whether acting Chief Justice
D could b~ consulted under Section 16 of the Act or the process initiated and
opinion given by the acting Chief Justice could be valid to satisfy the
requirement of the said Section.

In the very terms of Article 223 of the Constitution, when the office
of Chief Justice of a High Court is vacant or when any such Chief Justice
E is by reason of absence or otherwise, unable to perform the duties of the
office of the Chief Justice, duties of the office of Chief Justice shall be
performed by such one or the other Judges of the Court as the President may
appoint for the purposes. Plain reading of this Article shows that one or
the other Judges of the High Court appointed in the vacancy of Chief Justice
F of a High Court for the time being can perform the duties of the office of
Chief Justice. No restriction or limitation in performance of duties by acting
Chief Justice can be read into the said Article. The Article also does not
indicate as to which of the duties of the Chief Justice can be performed or
which of the duties cannot be performed by the acting Chief Justice.
Appointment of one or the other Judges of a High Court as acting Chief
G Justice is meant to carry on the work of the High Court and the judiciary
in the State. May be sometimes appointment of Chief Justice to a High Court
may take some time for various reasons and consequently acting Chief
Justice continues to work for longer period, but that itself does not take away
the powers conferred by the Constitution on a Judge to act as Chief Justice
H to perform the duties of the Chief Justice. Normally the senior most puisne
SHRI ASHOK TANWAR v. STATE [PATIL, J.] 1087

Judge is appointed as acting Chief Justice. Such puisne Judge is expected A
to act appropriately in discharging the duties of the office of Chief Justice.
It is rule of prudence that the acting Chief Justice may not take major
decisions which otherwise could have been taken by the Chief Justice or
which decisions could wait for a Chief Justice. Assuming that some deci-
sions taken by an acting Chief Justice are required to be modified or B
corrected, that can be done either on administrative side or on the judicial
side by the High Court or by this Court including the Chief Justice oflndia,
as the case may be. In some cases if appointment of Chief Justice of a 1-ligh
Court takes longer time and the acting Chief Justices cannot discharge the
duties of the office of the Chief Justice the work of the High Court or the
State judiciary or for the matter wherever the opinion of Chief Justice is c
required like the one under Section 16 of the Act, it will result in anomalous
position leading to paralyzing the working or may be sometimes creating
a deadlock. When Article 223 of the Constitution in specific terms confers
powers on acting Chief Justice to discharge the functions of the office of ·
Chief Justice without any limitation or rider, it cannot be accepted that an D
acting Chief Justice cannot perform the duties expected to be performed by
him under Section 16 of the Act. Consultation with acting Chief Justice
under Section 16 of the Act is to be taken as consultation with the Chief
Justice of a High Court. Powers conferred under Article 223 of the
Constitution on an acting Chief Justice to perform the duties of the
Chief Justice is available for the purpose of Section 16 of the Act. E
We may hasten to add that it is not the case of the petitioner in High Court
that the Chief Justice of the High Court was going to be appointed shortly
or the matter of appointment of President of the State Commission was such,
which on the facts and in the circumstances of the case, did not call for an
immediate decision by Acting Chief Justice and could have waited for the F
appointment of the Chief Justice of the High Court. In other words, no
., statutory provision can stand in the way of constitutional provision in case
of conflict between them.

Thus, having examined all aspects and in the light of what is stated
above we are of the view that the High Court was right in dismissing the G
writ petition. We do not find. aqy. good ground or valid reason to disturb

..
the judgment under challenge. Consequently the appeal is dismissed leaving . J<

the parties to bear their own costs .
..
B.K. Appeal dismissed. H