Holding

The opinion of the Chief Justice of India, formed after consulting senior colleagues, has primacy in the appointment of judges to the Supreme Court and High Courts, and is determinative in the transfer of High Court judges; no appointment can be made unless it conforms to that opinion, and fixation of judge-strength is justiciable to a limited extent.

Summary

This public interest litigation concerned the appointment of judges to the Supreme Court and High Courts, and the transfer of High Court judges. The case was referred to a nine-judge bench to reconsider the majority view in S.P. Gupta v. Union of India (1982), which held that the Central Government had primacy in judicial appointments and that judge-strength fixation was not justiciable. The petitioners argued that the Chief Justice of India's opinion should have primacy in appointments and transfers, and that judge-strength fixation should be justiciable. The Court held that the appointment process is an integrated participatory consultative process, and the opinion of the Chief Justice of India, formed after consulting senior colleagues, has primacy in appointments and is determinative in transfers. No appointment can be made unless it conforms to the Chief Justice of India's opinion, except in exceptional cases with strong cogent reasons disclosed to him. The Court also held that fixation of judge-strength in High Courts is justiciable to a limited extent, allowing a direction to assess and fix strength commensurate with the need for speedy justice. The majority opinion in S.P. Gupta was partly overruled. The matters were disposed of with detailed norms for appointments and transfers.

Issues considered

Whether the opinion of the Chief Justice of India has primacy in the appointment of judges to the Supreme Court and High Courts under Articles 124(2) and 217(1) of the Constitution.
Whether the opinion of the Chief Justice of India is determinative in the transfer of High Court Judges/Chief Justices under Article 222(1).
Whether the fixation of judge-strength in High Courts under Article 216 is justiciable.
Whether the majority view in S.P. Gupta v. Union of India (1982) on these matters should be reconsidered and overruled.

Legislation cited

Constitution of Indias. Article 124, s. Article 21, s. Article 216, s. Article 217, s. Article 222, s. Article 226, s. Article 233, s. Article 235, s. Article 32, s. Article 50, s. Article 74

Subjects

Judicial appointmentsPrimacy of Chief Justice of IndiaConsultationIndependence of judiciaryTransfer of judgesJudge-strengthJusticiabilityConstitutional interpretationSeparation of powersRule of law

Judgment

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

OCTOBER 6, 1993
B
[S. RATNAVEL PANDIAN, A.M. AHMADI, KULDIP SINGH,
J.S. VERMA, M.M. PUNCHHI, YOGESHWAR DAYAL,
G.N RAY, DR. AS. ANAND AND S.P. BHARUCHA, JJ.]

Constitution of India,. 1950 : Articles 124 and 217-Appointment of C
Judges of Supreme Court and High Courts--<::onsultation with the Chief Jus-
tice of India-Expression 'after consultation with'-Meaning of-Opinion of
the Chief Justice of India-Whether should have primacy over Executive
opinion-Norms to be followed in this regard laid down-Appointment of
Judges of Supreme Court-Doctrine of legitimate expectation-Applicability D
of

Article 222-Transfer of High Court Judges/Chief Justices-Role and
responsibility of the Chief justice of India-Opinion of the Chief Justice of
India-Whether prima-Consent of the Judge/Chief Justice to be trans/em~
whether require~Transfer-Nature of-After initial transfer, whether sub- E
sequent transfer could be made-Transfer Policy-Justiciability of-Norms to
be observed.

Article 21~Strength of Judges-Fixation of-Justiciability of-Extent
and scope of judicial review-Periodical review-Need for.
F
Articles 124(2), 2170) and 222(1}-Appointment ofJudges of Supreme
Court and High Courts-Transfer of Judges/Chief Justices of High
Courts-President's consultation process with the Chief Justice of
India-Position and role of the Chief Justice of India-Whether primacy to
be given to opinion of CfI-Nature and relevance of independence of judiciary G
and separation of judiciary in this regar~'Consultation'-Meaning and na-
ture of-Contextual meaning-Consultation-Whether mandatory-Non- ob-
servance--Effect Of-Nature and extent of justiciability of these
matters-'President and Governor' in the context of appointment of Judges of
Supreme Court and High Courts and transfer of Judges/Chief Justices of High
Courts-Whether mean Central and State Governments-Opinion of H
659
660 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A CJI-Whether includes Opinion of his colleagues-Expression 'opinion of
judiciary as symbolized by the views of the Chief Justice of lndia'-Meaning
of

Articles 124(2) and 217(1)-Conventions-When could be read into
constitutional provisions-When acquire binding force of constitutional
B Law-Conventions regarding primacy to judiciary in the matter of appoint-
ment of Judges of superior courts and initiation of proposals for appoint-
ment-Existence of and recognition to.

Article 124(2) and 217(1)-Appointment of Chief Justice of India/High
Court-Procedure prescribed for appointment of Judges-Whether includes
C Chief Justice of India/High Court-'Judge'-Meaning of-·Whether includes
Chief Justice of India/High Court-Convention as to senionnost puisne Judge
being appointed as Chief Justice of India-Whether exists.

Article 141-Judgment of Supreme Court-Reconsideration of-When
D can be done-Necessary conditions for reconsideration-Stare decisi~ele
vance of, in constitutional cases-Judicial activitism---L,imils of

Articles 32 and 226-Judicial review-Grounds for-Scope and extent
of judicial review-Non-observance of public duty-Whether mandamus
could be issued even if the duty is discretionary.
E
Article 5()-{ndependence of judiciary-concept of-Whether secured
by constitutional security of tenure of office, immovability from office and
guarantees of service conditions, pensions, etc.--{)octrine of separation of
powers--relevance of in the context of appointment of Judges of the Supreme
Court and High Court Judges-Expression 'State'-Meaning of-Giving ab-
F solute supremacy to the Council of Ministers in selection and appointment of
Judges of Supreme Court and High Courts-Whether contrary to inde-
pendence of judiciary.

Articles 74(1) and 163(1)-0pinion given by the Council of Mini-
sters-Nature of-Whether President/Governor bound by the advice rendered
G on reconsideration.

Article 224-Appointment of additional and acting Judges-Whether
could be made without the requirement of consultation.

Article 233(1)-Appointment of District Judges-Whether consultation
H is with the entire body of Judges constituting the High Court or with a Single
ADVOCATES ASSN. v. U.O.I. 661

individual like the Chief Justice of the High Court-Consultation with A
and/recommendation of the High Court-Whether a condition precedent to
the exercise ofpower by the Governor of the State-Whether such consultation
must be complete and meaningful and purposeful.

Article 235-Subordinate Judiciary-Independence of-Whether
secured by placing it within High Court's control. B

Interpretation of the Constitution-Principles of-Liberal interpretation
to meet requirement of ever-changing society-Limits of-Stretching the mean-
ing-Cannot extend to breaking it or re-writing it-Constitutional Assembly
Debates-Whether could aid to constructiott-Reliance on the Debates vis-a- C
vis the experience gained in working of the Constitution-Ordinary mies of
interpretation-Whether could be applied in construing constitutional
provisions-Where language is plain and unambiguous-Whether it should be
given effect to-Judiciary-Role of-Whether could go into question of what
the law ought to be or should it confine itself to interpret the relevant
constitutional provisions as they stand in their red spirit and objections D
without straining them.

Words and Phrases: Expression 'Consultation'-Meaning of in com-
mon parlance.

On a Writ Petition filed in Public Interest seeking issuance of a
E
mandamus to the Union of India for filling up the vacancies of Judges in
th Supreme Court and several High Courts, this Court passed an order
on 26th October, 1990 Subhash Sharma & Ors. v.. Union of India, [1990)
Supp. SCR 433 directing that the said Writ petition and the matters
connected therewith, viz., Writ Petition filed by the Supreme Court Advo- F
cates-on-Record Association and another Writ petition filed by a Senior
Advocate, be referred to a larger Bench for reconsidering the correctness
of the majority view in S.P. Gupta & Ors. etc. etc. v. Union of India and Ors.
etc. etc., [1982) 2 SCR 365. Accordingly, these matters were referred to a
nine-Judges Bench.
G
In S.P. Gupta, the majority of the Judges took th_e view that the
opinion of the Chief Justice of India did not have primacy in the matter
of appointments of Judges of the Supreme Court and the High Courts,
that the primacy was with the Central Government, which was to take the
decision after consulting all the Constitutional functionaries and the H
662 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A Central Government was not bound to act in accordance with the opinion
of all the Constitutional functionaries consulted, even if their opinion be
identical, 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 to initiate the proposal for appointment of a Judge of
Court ()r High Court even though it would be appropriate that the
B 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 was also held that the Mater regarding appointment of
adequate number of Judges was non-justiciable and, therefore, could not
be enforced by the Court.
c
On behalf of the Writ Petitioners it was contended that (1) the role
of the Chief justice of India in the matter of appointments to the Supreme
Court and the High Courts and transfers of the High Court Judges and
Chief Justices had primacy, with the executive having the role of merely
D n.aking the appointments and transfers in accordance with the opinion of
the Chief Justice of India; (2) fixation of the Judge-strength under Article
216 was justiciable; (3) there was primacy of the role of the Chief Justice
of India in th~ process of appointment, which was an integrated process.

On behalf of Union of India, it was urged that the majority opinion
E in S.P. Gupta, should be affirmed and contended that there was no oc-
casion to take a different view, more so when, in spite of that decision, in
the actual working, the Government of India gave the greatest weight to
the opinion of the chief Justice of India, and except on rare occasions,
appointments had been made only in accordance with the opinion of the
F Chief Justice of India; that the Constituent Assembly debates showed that
the plea for primacy of the Chief justice of India, or the requirement of
his concurrence in making the appointments, was considered a.nd express-
ly discarded while drafting the Constitution, that the several provisions in
the Constitution relating to the oath of office; fixity of tenure; restriction
G against alteration of conditions of service to the detriment of the Judges
after their appointment; salaries and pensions being charged on the
Consolidated Fund; restriction on discussion of their conduct in the
legislature; power to punish for contempt; and open hearing in courts were
sufficie~t safeguards for the independence of the judiciary and, therefore,
no further exclusion of the executive's rule in the process of appointment
H of judges was conten1plated.
ADVOCATES ASSN. v. U.O.L 663

The Union of India also contended that barring a few exceptions, all A
appointments to the superior judiciary were made only in accordance with
the opinion of the Chief Justice oflndia, notwithstanding the majority view
in S.P. Gupta. And that in the actual working of this process, even the
executive attached primacy to the role of the Chief Justice of India in the
matter of appointments to the superior judiciary notwithstanding the B
decision in S.P. Gupta that the primacy was with the Government of India
and not in the Chief Justice of India.

On behalf of States of Sikkim and Madhya Pradesh it was contended
that the primacy was in the executive, and the majority opinion in S.P.
Gupta was correct, and did not require reconsideration. c
The State of Karnataka urged'reconsideration of the majority view
in S.P. Gupta on the ground that opinion of Chief justice of India must
prevail and it should be given primacy over the executive opinion.

Disposing of the matters, this Court D
HELD:

By the Coutt:

1. The process of appointment of Judges to the Supreme Court and E
the High Courts is an integrated 'participatory consultative process' for
selecting the best and most suitable persons available for appointment;
and all the Constitutional functionaries must perform this duty collectively
with a view primarily to reach an agreed decision, subserving the constitu-
tional purpose, so that the occasion of primacy does not arise. [777-E]
F
2. Initiation o,f the proposal for appointment in the case of the
Supreme Court must be by the Chief Justice of India, and in the case of a
High Court by the Chief Justice of that High Court, and for transfer of a
Judge/Chief Justice of a High Court, the proposal has to be initiated by
the Chief Justice of India. This is the manner in which proposals for G
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. [777-F-G]

3. In the event of conflicting op1mons by the Constitutional
functionaries, the opinion of the judiciary 'symbolised by the view of the H
664 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Chief Justice of India', and formed in the manner indicated, has primacy.
(777-H]
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. (778-A]
B
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 a:ipointment, 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
C Court who have been consulted in the matter, on reiteration of the recom-
mendation by the Chief Justice of India, the appointment should be made
as a healthy convention. (778-8-C]

6. Appointment to the office of the Chief Justice of India should be
D of the seniormost Judge of the Supreme Court considered fit to hold the
office. (778-D]

7. The opinion of the Chief justice of India has not mere primacy,
but is determinative in the matter of transfers of High Court Judges/Chief
Justices. (778-D]
E
8. Consent of the transferred Judge/Chief Justice is not required for
either the first of any subsequent transfer from one High Court to another.
(778-E]
9. Any transfer made on the recommendation of the Chief Justice of
F India is not to be deemed to be punitive, and such transfer is not
justiciable on any ground. [778-E-F]

10. In making all appointments and transfers, the norms indicated
must be followed. However, the same do not confer any justiciable right in
G any one. [778-F]

11. Only limited judicial review on the grounds specified herein is
available in matters of appointments and transfers. [778-G]

12. The initial appointment of a Judge can be made to a High Court
H other than that for which the proposal was initiated . (778-G-H]
ADVOCATES ASSN. v. U.O.I. 665

13. Fixation of judge-strength in the High Courts is justiciable, but A
only to the extent and in the manner indicated. [778-H]

14. The majority opinion in S.P. Gupta v.Union of India, [1982) 2
SCR 365, in so far as it takes the contrary view relating to primacy of the
role of the Chief Justice of India in matters of appointments and transfers
and the justiciability of these matters as well as in relation to Judge- B
strength, does not commend itself to this Court as being the correct view.
The relevant provisions of the Constitution, including the constitutional
scheme must now be construed, understood and implemented in the
manner indicated herein. [779-A-B]
c
Per Venna J. for himself, Dayal, Ray, Anand and Bhamcha, JJ.

1.1. The question of primacy of the role of the Chief Justice of India
in the context of appointment of judges in the Supreme Court and the High
Courts must be considered in the backdrop of Rule of Law and the broall
scheme of separation of powers, for the proper picture of the constitutional D
scheme to emerge from the mixture of various hues, to achieve the con-
stitutional purpose of selecting the best available for composition of the
Supreme Court and the High Courts, so essential to ensure the inde-
pendence of the judiciary and, thereby, to preserve democracy. A fortiori
any construction of the constitutional provisions which conflicts with this E
constitutional purpose or negates the avowed object has to be eschewed
being opposed to the true meaning and spirit of the Constitution and,
therefore, an alien concept. [741-F-G, 750-A-B]

1.2. The appointment of superior Judges is from amongst persons
of mature age with known background and reputation in the legal profes- F
sion. By that time the personality is fully developed and the propensities
and background of the appointee are well known. The collective wisdom of
the constitutional functionaries involved in the process of appointing
superior Judges is expected to ensure that persons of unimpeachable
integrity alone are appointed to these high offices and no doubtful persons G
gain entry. [747-H & 748-A-B]

1.3. The hue of the word 'consultation', the consultation is with the
Chief Justice of India as the head of the Indian Judiciary, for the purpose
of composition of higher judiciary, has to be distinguished from the colour
the same word 'consultation' may take in the context of the executive as- H
666 SUPREME COURT REPORTS [1993) SUPP. 2 S.CR

A sociated in that process to assist in the selection of the best available
material. [749-A, BJ

1.4 The primacy of one Constitutional functionary qua the others,
who together participate in the performance of this function assumes sig·
nificance only when they cannot reach an agreed conclusion. The debate is
B academic, when a decision is reached by agreement taking into account the
opinion of every one participating together in the process, as primarily
intended. The situation of a difference at the end, raising the question of
primacy is best avoided by each constitutional functionary remembering
that all of them are participants in a joint venture, the aim of which is to
find out and select the most suitable candidate for appointment, after
c assessing the comparative merit of all those available. This exercise must
be performed as a pious duty to discharge the constitutional obligation ..
imposed collectively on the highest functionaries drawn from the executive
and the judiciary, in view of the great significance of these appointments.
[752-E-G]
D 1.5. 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
E consciousness that each of them has some inherent limitation, and it is only
collectively that they constitute the selector. [752-G-H; 753-A]

1.6. The discharge of the assigned role by each Constitutional func·
tionary, viewed in the context of the obligation of each to achieve the
common constitutional purpose in the joint venture will help to transcend
F the concept of primacy between them. However, if there be any disagree-
ment even then between them which cannot be ironed out by joint effort, the
question of primacy would arise to avoid stalemate. F'or 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,
G words, primacy should be in him who qualifies to be treated as the 'expert'
in the field. Comparatively greater weight to his opinion may then be
attached. [753-B-D]

1.7. This perception in all the constitutional functionaries associated
in the integrated participatory consultative process to achieve the avowed
H common purpose should ordinarily prevent the situation when the question
ADVOCATES ASSN. v. U.O.I. 667

of primacy arises; and in the exceptional cases when it does arises, the A
functionary having primacy would do well to respect the viewpoint of others
and recall that it implies the carrying by him of a greater burden. This will
ensure better performance of the role with primacy, in the proper spirit, and
will make it easier for the others to accept the primacy. [753-D-F]

1.8. The appointment of Judges to the Supreme Court and the High B
Courts is made by the President and is, therefore, ultimately an executive
act. Article 74(1) clearly provides, and the proviso inserted therein by the
Constitution (Forty forth Amendment) Act,1978 reinforces, that the Presi-
dent, in exercise of his function, shall act in accordance with the advice
tendered by the Council of Ministers. if Articles 124(2) and 217 (1) provided C
for appointments of Judges by the President without obligatory consult-
ation with the functionaries specified therein, then, by virtue of the full
effect of Article 74, there W!mld be no room for any controversy that the
appointments were not to be made by the executive in its absolute discre-
tion. [753-F-H; 754-A]
D
1.9. It was realised at the time of framing of the Constitution that
the independence of the judiciary had to be safeguarded not merely by
providing security of tenure and other conditions of service after the
appointment, but also by preventing the influence of political considera-
tions in making the appointments, if left to the absolute discretion of the E
executive as the appointing authority. It is this reason which impelled the
incorporation of the obligation of consultation with the Chief Justice of
India and the Chief Justice of the High Court in Articles 124(2) and 217(1).
The Constituent Assembly Debates disclose this purpose in prescribing for
such consultation, even though the appointment is ultimately an executive
act. [756-B-D] F

1.10. The consideration must, therefore, be confined to the compara-
tive weight to be attached to the opinion of the Chief Justice of India
vis-a-vis the opinion of the other consultees and the Central Government.
The majority view in S.P. Gupta's case conflicts with this constitutional G
scheme and is not a correct construction of the provisions in Articles 124(2)
and 217(1). [756-G-H; 757-A]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 315, partly over-ruled.

1.11. The provision for consultation with the Chief Justice of India H
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A and, in the case of the High Courts, with the Chief Justice of the High Court
was introduced because of the realisation 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,
since the provisions for securing his independence after appointment were
B alone not sufficient for an independence judiciary. At the same time, the
phraseology used indicated that giving absolute discretion or the power of
veto to the Chief Justice of India as an individual in the matter of appoint·
ments was not considered desirable, so that there should remain some
power with the executive to be exercised as a check, whenever necessary. The
c indication is, that 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
D 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 an individual, much less
to the executive, which earlier had absolute discretion under the Govern-
E ment of India Acts. [757-E-H; 758-A-B]

1.12. 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 is best suited to know the worth
of the appointee. No question of primacy would arise when the decision is
F reached in this manner by consensus, without any difference of opinion.
However, if conflicting opinions emerge at the end of the process, then only
the question of giving primacy to the opinion of any of the consultees arises.
Primacy to the executive is negatived by the historical change and the
nature of functions required to be performed by each.·The primacy mu_st,
G therefore, lie in the final opinion of the Chief Justice of India, unless for
very good reasons known to the executive and disclosed to the Chief Justice
of India, that appointment is not considered to be suitable. [758-C-E]

Commonwealth Law Bulletin, Vol.18 No. 4, October [1992) p. 1257,
H referred to.
ADVOCATES ASSN. v. U.O.I. 669

1.13. The reason given by the majority in S.P. Gupta for its view that A
the executive should have primacy, since it is accountable to the people
while the judiciary has no such accountability, does not withstand scrutiny,
and is also not in accord with the existing practice and the perception even
of the executive. In actual practice, the real accountability in the matter of
appointments of superior Judges is of the Chief justice of India and the B
'-. Chief Justice of the High Court, and not of the executive, which has always
held out that, except for rare instances, the executive is guided in the
matter of appointments by the opinion of the Chief Justice of India.
However, the primacy of the opinion of the Chief Justice of India in this
context is, in effect, primacy of the opinion of the Chief Justice of India
formed collectively, that is to say, after taking into account the views of his C
senior colleagues who are required to be consulted by him for the forma-
tion of his opinion. [759-D-E-H; 760-A-D]

S.P. Gupta v. Union of India, [1982) 2 S.C.R. 365, overruled.
1
D
1.14. In view of the provision in Article 74(1), the expression
'President' in Articles 124(2) and 217(1) means the President acting in
accordance with the advice of the council of Ministers with the Prime
Minister at the head, and the advice given by the Council of Ministers has
to accord with the mandate in the Constitution. Thus, in the matter of
appointments of Judges of the superior judiciary, the interaction and E
harmonisation of Article 74(1) with Articles 124(2) and 217(1) has to be
borne in mind, to serve the constitutional purposes. 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 Council of Ministers as provided in Article 74(1), and the advice of F
the Council of Ministers is to be given in accordance with Articles 124(2)
and 217(1), as construed by this Court. In this sphere, Article 74(1) is
circumscribed by the requirement of Articles 124(2) and 217(1), and all of
them have to be read together. This view also accords with the provisions
in the Constitution pertaining to the removal from office of Judge of the
Supreme Court and the High Court. [760-E-H; 761-A-B] G

1.15 Providing for the role of the judiciary as well as the executive in
the integrated process of appointment merely indicates, that it is a par-
ticipatory consultative process, and the purpose is best served if at the end
of an effective consultative process between all the consultees the decision H
670 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A is reached by consensus, and no question arises of giving primacy to any
consultee. Primarily, it is this indication which is given by the constitution-
al provisions, and the constitutional purpose would be best served if the
decision is made by consensus without the need of giving primacy to any
one of the consultees on account of any difference remaining between them.
The question of primacy of the opinion of any one of the constitutional
B functionaries qua the others would arise only if the resultant of the
consultative process is not one opinion reached by consensus.
[761·G·H; 762·A]

1.16. Since the constitutional purpose to be served by these
C provisions is to select the best from amongst those available for appoint·
ment as judges of the superior judiciary, after consultation with those
functionaries who are best suited to make the selection, only those persons
should be considered fit for appointment as Judges of the superior
judiciary who combine the attributes essential for making an able, inde-
pendent and fearless Judge. Several attributes together combine to con·
D stitute 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 object of selecting the best men to constitute the
superior judiciary is achieved by requiring consultation with not only the
E judiciary but also the executive to ensure that every relevant particular.
about the candidate is known and duly weighed as a result of effective
consultation between all the consultees before the appointment is made. It
is the role assigned to the judiciary and the executive in the process of
appointment of Judges which is the true index for deciding the question of
primacy between them, in case of any difference in their opinion. The
F answer which best subserves this constitutional purpose would be the
correct answer. The judiciary being best suited and having the best oppor·
tunity to assess the true worth of the candidates, the constitutional pur·
pose of selecting the best available men for appointment as superior
Judges is best served by ascribing to the judiciary, as a consultee, a more
G significant role in _the process of appointment. The only question is of the
extent of such significance and the true meaning of the primacy of the role
of the Chief Justice of India in this context. [762-B-H, 763-A·B]

Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985] 4 S.C.C.
H 417, relied on.
ADVOCATES ASSN. v. U.O.I. 671

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to. A

2.1 The principle of non-arbitrariness which is an essential attribute
of the rule of law is all pervasive throughout the Constitution, as an adjunct
of this principle is the absence of absolute power in one individual in any
sphere of constitutional activity. The possibility of intrusion of arbitrari- B
ness has to be kept in view, and eschewed, in constitutional interpretation
and, therefore, the meaning of the opinion of the Chief Justice of India, in
the context of primacy, must be ascertained. A homogenous mixture, which
accords with the constitutional purpose and its ethos, indicates that it is
the opinion of the judiciary 'symbolised by the view of the Chief Justice of
India' which is given greater significance or primacy in the matter of C
appointments. In other words, the view of the Chief Justice oflndia is to be
expressed in the consultative process as truly reflective of the opinion of
the judiciary, which means that it must necessarily have the element of
plurality in its formation. In actual practice, this is how the Chief Justice
of India does, and is expected to function, so that the final opinion ex- D
pressed by him is not merely his individual opinion, but the collective
opinion formed after taking into account the view of some other Judges who
are traditionally associated with this function. The modality for achieving
this purpose, is found from the reference to the office of the Chief Justicf
of India, which has been named for achieving this object in a pragmatic
manµer. The opinion of the judiciary symbolised by the view of the Chief E
Justice oflndia', iii to be obtained byronliu.ltation with the Chief Justice of
India, and it is this opinion which has primacy. [764-D-H; 765-A]

2.2. The rule of law envisages the area of discretion to be the mini-
mum, requiring only the application of known principles or guidelines· to F
ensure non-arbitrariness, but to that limited extent, discretion is a prag-
matic need. Conferring discretion upon his functionaries and, whenever
feasible, introducing the element of plurality by requirieg a collective
decision, are further checks against arbitrariness. This is how idealism and
pragmatism are reconciled and integrated, to make the system workable in
a satisfactory manner. Entrustment of the task of appointment of superior G
Judges to high constitutional functionaries, the greatest significance at-
tached to the view of the Chief Justice of India, who is best equipped to
assess the true worth of the candidates for adjudging their suitability, the
opinion of the Chief Justice of India being the collective opinion formed
after taking into account the views of some of his colleagues; and the H
672 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A executive being permitted to prevent an appointment considered to be
unsuitable, for strong reasons disclosed to the Chief Justice of India,
provide the best method, in the constitutional scheme, to achieve the con-
stitutional purpose without conferring absolute discretion or veto upon
either the judiciary or the executive, much less in any individual, be he the
Chief Justice of India or the Prime Minister. [765-A-D]
B
3.1. Every power vested in a public authority is to subserve a public
purpose, and must invariably be exercised to promote public interest. This
guideline is inherent in every such provision, and so also in Article 222.
The provision requiring exercise of this power by the President only after
C consultation with the Chief Justice of India, and the absence of the
requirement of consultation with any other functionary, is clearly indica-
tive of the determinative nature, not mere primacy, of the Chief Justice' of
India's opinion in this matter. [765-F-G]

Union of India v. Sankal Chand Himatlal Sheth and Anr., [1978) 1
D S.C.R. 423 and S.P. Gupta and Ors. Etc. Etc. v. Union of India & Ors. etc.
etc., [1982) 2 S.C.R. 365, relied on.

3.2. The initiation of the proposal for the transfer of a Judge/Chief
Justice should be by the Chief Justice of India alone. This requirement in
E the case of a transfer is greater, since consultation with the Chief Justice
of India alone is prescribed. [766-A-B]

3.3. 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
F transfer in Article 222, any transfer in accordance with the recommenda-
tion of the Chief Justice of India cannot be treated as punitive or an
erosion in the independence of judiciary. If the transfer of a Judge on
appointment as Chief Justice is not punitive, there is no occasion to treat
the transfer of any other Judge as punitive. [766-C-F]

G 3.4. The power under Article 222 is available throughout the tenure
of a High Court Judge/Chief Justice, and it is not exhausted after the first
transfer is made. The contrary view in S.P. Gupta has no basis in the
Constitution. It is reasonable to assume that the Chief Justice of India will
recommend a subsequent transfer only in public interest, for prompting
H better administration of justice throughout the country, or the request of
ADVOCATES ASSN. v. U.O.I. 673

the concerned Judge. A transfer made in accordance with the recommen- A
dation of the Chief Justice of India, is not justiciable. [766-G-H; 767-A-B]

S.P. Gupta v. Union of India, [1982] 2 S.C.ll. 365, held inapplicable.

3.5. Promotion of public interest by proper functioning of the High
Courts and, for that reason, the transfer of any Judge/Chief Justice from B
One High Court to another must be the lodestar for the performance of
this duty enjoined on the Chief Justice of India, as the head of the Indian
Judiciary. Suitable norms, including those indicated herein, must be fol-
lowed by the Chief Justice of India, for his guidance, while dealing with
individual cases. [767-B-C] . C

4.1. 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 judicial review of those decision, which is ordinarily needed as
a check against possible executive excess or arbitrariness. Plurality of D
Judges in the formation of the opinion of the Chief Justice of India, is
another in built check against the likelihood of arbitrariness or bias, even
sub-conciously, of any individual. The judicial element being predominant
in the case of appointments, and decisive in transfers, the need for further
judicial review, as in other executive actions, is eliminated. The reduction E
of the area of discretion to the minimum, the element of plurality of Judges
in formation of the opinion of the Chief Justice of India, effective consult-
ation in writing, and prevailing norms to regulate the area of discretion
are sufficient checks against arbitrariness. [775-B-E]

4.2 The guidelines in the form of norms, are not to be construed as F
conferring any justiciable right in the transferred Judge. Apart from the
constitutional requirement of a transfer being made only on the recom-
mendation ~f the Chief Justice of India, the issue of transfer is not
justiciable on any other ground, including the reasons for the transfer or
their sufficiency. The opinion of the Chief Justice of India formed in the G
manner indicated is sufficient safeguard and protection against any ar-
bitrariness or bias, as well as any erosion of the independence of the
judiciary. [775-E-F]

4.3. This is also in accord with the public interest of excluding these
appointments and transfers from litigative debate, to avoid any erosion in H
674 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.J:<..

A the credibility of the decisions, and to ensure a free and frank expression
of honest opinion by all the constitutional functionaries, which is essential
for effective consultation and for taking the right decision. [775-G]

5. There is a growing tendency of needless intrusion by strangers and
busy-bodies in the functioning of the judiciary under the garb of public
B interest litigation. Except on the ground of want of consultation with the
named constitutional functionaries or lack of any condition of eligibility
in the case of an appointment, or of a transfer being made without the
recommendation of the Chief Justice of India, these matters are not
justiciable on any other ground, including that of bias, which in 'any case
C is excluded by the element of plurality in the process of decision making.
[775-G-H; 776-A-B]
Raj Kanwar, Advocate v. Union of India andAnr. [1992] 4 S.C.C. 605,
referred to.

D 6.l. Article 216 which deals with constitution of High Courts,
provides that 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'. 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
E 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' • a 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 Ill of the Constitution. Accordingly, the failure to perform
this obligation, resulting in negation of the rule of law by the laws' delay
must be justiciable to compel performance of duty. [776-C-F]

6.2. Accordingly, fixation of Judge strength in a High Court is
justiciable; and if it is shown that the existing strength is inadequate to
G provide speedy justice to the people - speedy trial being a requirement of
Article 21 - in spite of the optimum efficiency of the existing strength, a
direction can be issued to assess the felt need and fix the strepgth of Judges
commensurate with the need to fulfil the State obligation of providing
speedy justice and to thereby 'secure that the operation of the legal system
H promotes justice' • a solemn resolve declared also in the Preamble of the
ADVOCATES ASSN. v. U.O.I. 675

Constitution. In making the review of the Judge strength in a High Court, A
the President must attach great weight to the opinion of the Chief Justice
of that High Court and the Chief Justice of India, and if the Chief Justice
of India so recommends, the exercise must be performed with due
despatch. [776-F-H; 777-A]

6.3. Article 216 like all constitutional provisions, is not to be con- B
strued in isolation, but as a part of the entire wnstitutional scheme, con-
forming to the constitutional purpose and its ethos. So construed, this
matter is justiciable to the extent and in the manner iadicated. Of course,
the area of justiciability does not extend further, to enable the Court to
made the review and fix the actual Judge strength itself, instead of requir-
ing the performance of that exercise in accordance with the recommenda-
c
tion of the Chief Justice of India. [777-B-C]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly overruled.

7.1. The questions of primacy of the opinion of the Chief Justice of D
India in regard to the appointments of Judges to the Supreme Court and
the High Courts and in regard to the transfers of High Courts Judges/
Chief Justice and justiciability of these matters including the matter of
Judge-strength in the High Courts have to be considered in the context of
independence of the judiciary, as a part of the basic structure of the Con-
stitution to s"ecure the 'rule of law' essential for the preservation of the E
democratic system. [739-E-F; 741-F]

7.2. The broad scheme of separation of powers adopted in the Con-
stitution, together with the directive principle of 'separation of judiciary
from executive' even at the lowest strata, provide some insight to the true
meaning of the relevant provisions in the Constitution relating to the F
composition of the judiciary. The construction of these provisions must
accord with these fundamental concepts in the constitutional scheme to
preserve the vitality and promote the growth essential for retaining the
Constitution as a vibrant organism. [741-F-G]
G
Sub-Committee on Judicial Accountability v. Union of India & Ors.,
[1991] 4 S.C.C. 699; Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr.,
[1975] Supp. S.C.C. 1 and Kesavananda Bharati v. Union of India, [1973]
Supp. S.C.R. 1, referred to .
.
' 7.3. There has to be room for discretionary authority within the H
676 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A operation of the rule of law, even though it .has to be reduced to the
minimum extent necessary for proper governance; and within the area of
discretionary authority, the existence of proper guidelines or norms of
general application excludes and arbitrary exercise of discretionary
authority. In such a situation, the exercise of discretionary authority in its
application to individuals, according to proper guidelines or norms, fur-
B ther reduces the area of discretion; but to that extent discretionary
authority has to be given to make the system workable. A further check in
that limited sphere is provided by the conferment of the discretionary
authority not to one individual but to a body of mem, requiring the final
decision to be taken after full interaction and effective consultation between
C them, to ensure projection of all likely points of view and procuring the
element of plurality in the final decision with the benefit of the collective
wisdom of all those involved in the process. The conferment of this discre-
tionary authority in the highest functionarises 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,
D therefore, matches the constitutional scheme and the constitutional pur-
pose for which these provisions were enacted. [774-E-H]

The Framing of India's Constitution, Vol. IV - B. Shiva Rao - p. 957-58,
referred to.
E
8. The absence of specific guidelines in the enacted provisions ap-
pears 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 norms mentioned herein
F emerging from the actual practice and crystalised 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. [767-F-H]

Per Pandian, J. (Concurring)
G
1.1. 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 'ronsultation' with any other authority as in the case of
appointment of a Judge of the Supreme Court as envisaged in clause (2)
H of Article 124. The word 'consultation' is powerful and eloquent with
ADVOCATESASSN. v. U.O.L 677

meaning, loaded with undefined intonation and it answers all the questions A
and all the various tests including the test of primacy to the opinion of the
CJI. [821-G-H, 822-A]

1.2. When a liberal construction is given to a word used in a statute,
particularly in the Constitution, the Court must first of all take note of the
relevant and significant context in which that work is used and then inter- B
pret that word in that context with meaningful purpose. If the construction
of the word is made only in a literal or lexical meaning, then there is every
possibility of missing the real intent of the provisions. [838-F-G]

U. The relevance and significance of consultation with the CJI in the C
context of appointment of Judges to the Supreme Court and High Court
has to be examined in the background of the constitutional scheme. The
derivative meaning of the word would depend not merely on its ordinary
lexical definition but greatly upon its contents according to the circumstan-
ces 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 D
which that word is used. [839-B-Dl

1.4. 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. E
[839-D-li']
1.5. Consultation with the CJI under the first proviso to Article
124(2) as well as under Article 217 is a mandatory condition, the violation
of which would be contrary to the constitutional mandate. [841-G-H]
F
Union of India v. Sankal Chand Himatlal Sheth and Anr., [1978) 1
S.C.R. 423, relied on.

M.M. Gupta & Ors. v. State of Jammu & Kashmir, [1982) 3 S.C.C."412,
referred to.
G
1.6. The vital role to be played by the CJI in the process of selection
of candidates for Judgeship for the superior judiciary is to sponsor and
recommend properly fit and competent person by evaluating their merit
and efficiency. [842-B]

1.7. It is beyond controversy that merit selection is the dominant H
678 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A method for judicial selection and the candidates to be selected must
possess high integrity, honesty, skill, high order of emotional stability,
firmness, serenity, legal soundness, ability and endurance. Besides, the
hallmarks of the most important personal qualifications required are
moral vigour, ethical firmness and imperviousness to corrupting or venal
influences, humility and lack of affiliations, judicial tempei-ament, zeal,
B capacity to work. [842-G-H, 843-A]

1.8. It cannot be gainsaid that only those who know what criteria they
should adopt in assessing merit, can alone evaluate meaningfully a
candidate's merit and select the prospective candidate. While weighing and
C evaluating the qualifications of the prospective candidate, whose names
come to attention, the sponsoring authority has to assess their merit hy
whatever useful non-bromidic guidelines it could devi5e based on its long-
standing experience both on the Bar and the Bench. That authority could
be only the Chief Justice of India and the Chief Justice of the High Court
D concerned who and who alone can speak of a candidate's professional'
attainments, his learning ability and his legal experience though the execu-
tive can speak of the other qualities such as affiliation, personal integrity,
antecedents and background of the candidate, The recipe regarding the
professional qualifications could be evaluated only by the Chief Justice.
The Government cannot inexcusably ignore the opinion of the CJI ex-
E pressed during the process of consultation as well as of the Chief Justice
of the High Court and appoint its selectees on its own evaluation of the
merit of the candidate. The CJI being the head of the Indian Judiciary and
pater families of the judicial fraternity has to keep a vigilant watch in
protecting the integrity and guarding the independence of the judiciary
F and he in that capacity evaluates the merit of the can~idate with regard to
his/her professional attainments, legal ability etc. and offer his opinion.
Therefore, there cannot be any justification in scanning that opinion of the
CJI by applying a super-imposition test under the guide of over-guarding
the judiciary. [844-D-H; 845-A-C]

G Parliamentary Debates (Hansard) House of Commons Debates, dated
23.3.54 Vol. 525, Col. 1061, referred to.

1.9. Appointment to the judicial office cannot be equated with the
appointment to the executive or other ~ervices. No doubt, the power of
H appointment of Judges i:J. many democratic countries is vested in the
ADVOCA1ESASSN. v. U.0.1. 679

executive. However even in foreign countries there is a demand for change A
in the selection and appointment of Judges. (845-D-E; 847-B]

1.111. Placing of the opinion of the CJI on par with the opinion of the
other constitutional functionaries, on the ground that clause (1) of Article
217 places all the three constitutional functionaries on the same pedastal
so far as the process of consultation is concerned, ignores or overlooks the B
very fact that the judicial service is not the service in the sense to employ-
ment, and is distinct from other services and that the members of the other
services cannot be placed on par with the members of the judiciary, either
constitutionally or functionally. In the background of the factual and legal
position, the meaning of the word 'consultation' cannot be confined to its C
ordinary lexical definition. Its contents greatly vary according to the cir-
cumstances and context in which the word is used as in the Constitution.
Therefore, the opinion of the Chief Justice of India in the process of con-
stitutional consultation in the matter of selection and appointment of
Judges to the Supreme Court and the High Courts as well as transfer to
Judges from one High Court to another High Court is entitled to have the D
right of primacy. (850-H, 851-A-B, 852-F-G; 853-A]

1.11. Innumerable impelling factors which motivate, mobilise and
impart momentum to the concept that the opinion of the CJI, given in the
process of 'consultation' is entitled to have primacy. The CJI being the
highest judicial authority, has a right of primacy, if not supremacy to be E
accorded, to his opinion in 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. (851-C, 853-B]

1.12. The power of the President to appoint a Judge does not prevail
F
over the executive but is purely confined to the executive's discretion.
(855-E]
1.13. Even though all the constitutional functionaries have their own
constitutional duties in making the appointment of a Judge, to the superior
Judiciary, the role of one of the principal constitutional functionaries, G
namely, the judiciary, is incontrovertibly immeasurable and incalculable.
The task assigned to the judiciary is no way less than those of other
functionaries • legislative and executive. On the other hand, the respon-
sibility of the judiciary is of a higher degree. Judiciary is the watch dog of
democracy, checking the excessive authority of other constitutional
functionaries beyond the ken of the Constitution. The strength and elTec- H
680 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A tiveness of the judicial system and its independence heavily depends upon
the calibre of men and women who preside over the judiciary and it is most
essential to have a healthy independent judiciary for having a healthy
democracy because if the judicial system is crippled, democracy will also
be crippled. [855-F-H; 856-A]

B 1.14. 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 affiliatil'n to their
C political philosophy or exhibit affinity to their ideologies. This motivated
selection of men and women to the judiciary certainly undermines public
confidence in the rule of law and resultantly the concept of separation of
judiciary from the executive as adumbrated 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
D situation, the consultation with the CJI will be an informal one for the
purpose of satisfying the constitutional requirements. [856-8-D]

S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982] 2
S.C.R. 365, referred to.
E
1.15. In view of the fact that the state is the major litigant, it cannot
be justified in enjoying absolute authority in nominating and appointing
its arbitrators. If such a process is allowed to continue, the independence
of judiciary in the long run will sink without any trace. [857-E-F]

F Law Commission of India, 14th, 18th and 21st report, referred to.

1.16. 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.
G 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 the relevant
materials concerning the proposal is in a better position either to accept
the recommendation or reject it for strong and cogent reasons to be
recorded. Therefore, in all circumstances, the opinion of the CJI is entitled
to have the right of primacy in the matter of selection of Judges to the
H Supreme Court as well as the High Courts. [859-C-H]
ADVOCATES ASSN. v. U.O.I. 681

1.17. While proviso to Article 124(2) contemplates the consultation A
.with the CJI by the President, Article 217(1) contemplates the consultation
of the Chief Justice of the High Court concerned in addition to the opinion
of the CJI aud the Governor of the State. But these fy'o Articles do not
require the CJI and the Chief Justice of a High Court iJ\ the formation of
their opinion to have a consultative process with the entil\e body of Judges
B
of the Supreme Court and the High Courts. Notwithstanding this legal
position, in order to have a pragmatic approach to matters relating to
appointments of Judges to the Supreme Court, it would be a healthy
practice, as a matter of prudence, that the CJI gives his opinion on a
consultative 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 c
of the High Court whose opinion is likely to be significant in adjudging the
suitability of the candidate. 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 D
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 colleagnes in the Supreme Court who are likely to be conver-
sant with the affairs of the concerned High Court. This consultative E
process is neither opposed to the constitutional provisions nor stands in
the way of the President consulting, in his discretion, such of the Judges
of the Supreme Court and of the High Courts in the States while consider-
ing the recommendation made by the CJI for appointment of a Judge to
the Supreme Court. On the other hand, the opinion so expressed by the F
CJI through such a consultative process, would be of much assistance to
the President in forming his independent opinion. [860-A-H]

1.18. When the CJI disapproves the proposal after the application of
his mind on due consideration of all the materials placed before him with G
which the other consultees of the Supreme Court also agree, the opinion of
the CJI deserves acceptance at the hands of the President of India. If for
any other potent reasons, the President forwards all materials available
with him which influenced his mind to take a contrary view requesting the
CJI to reconsider his opinion and the CJI expresses the same opinion of
disapproval, after consulting his colleagnes, then the opinion of the CJI H
682 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A should prevail and that candidate is not appointed. In any exceptional case,
for weighty and cogent reasons indicating that the recommendee is not
suitable for appointment, that appointment recommended by the CJI may
not be made. However, if the stated reasons are not acceptable to the CJI
and the Other Judges who have been consulted in the matter, and the
recommendation by the CJI is reiterated, the appointment shall be made.
B [861-B-E]

2.1. By convention and practice, the initiation of proposal for
judgeship is to be made only by the CJI whose opinion in this matter, is
entitled to primacy or Justice of the High Court concerned and none else
and that the procedure in vogue alone is a healthy practice. Therefore, the
c 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 only be violative of the well accepted long standing practice but also
D destructive of the independence of the judiciary. However, there will be no
unconstitutionality or illegality in the executive making proposals and such
proposals will not be violative of the existing practice or opposed to the
public policy. Indeed, the Central Government which is accountable to the
people should have the right of suggesting the names of the suitable can-
didates with sterling character for consideration to the CJI for judgeship
E of the Supreme Court and to the Chief Justice ofa State to that High Court.
Similarly, the State Government which is also equally accountable to the
people should have the right to suggest the names of candidates for con-
sideration to the Chief Justice of its State or various reasons. For example,
there is a general grievance that suitable candidates for judgeship, who are
F at the grassroot level of society are inexcusably neglected from being con-
sidered for judicial office for one reason or another. Therefore, the Govern-
ment will be justified in proposing the names of those candidates to the
Chief Justice concerned from the neglected section or depressed classes
along with others whom the Government thinks fit and suitable to be
considered for appointment of Judges. [861-G-H, 862-A-E; 864-A]
G
2.2. Even in well advanced countries in practice, regional, social and
racial representations are kept in view in making appointments of Judges
to superior judi-:iary, without of course sacrificing merit. This view should
not be construed as a plea for reservation or quota system, of any kind, but
H it is expressed only with the sole object of attracting the best in judicial

r
ADVOCATES ASSN. v. U.O.I. 683

talent from all sections of society on equal footing and bringing them within A
the zone of consideration by the concerned Chief Justice. [864-C-D]

Law Commission: 18th Report, referred to.

23. The Government which is accountable to the people, should have
the right of suggesting candidates to the concerned Chief Justice for con- B
sideration but the Government has no right to directly send the proposal
for appointments bypassing the Chief Justice concerned. 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 C
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 ensm'ed that all sections of the people are
duly represented so that there may not be any grievance of neglect from any D
section or class of society. [877-C-F]

2.4. The right of entry into superior judicial office is not the exclusive
prerogative of any particular cotorie or privileged class or group of people.
To say differently it is neither inheritable nor a matter of patronage. The E
Indian democratic polity is not only for may self-perpetuating oligarch but
it is for all people of our country. If the vulnerable sections of people are
completely neglected the State cannot claim to have achieved real par-
ticipatory democracy. Therefore, there i~ every justification for the Govern-
ment to forward lists of candidates belonging to diverse sections of the
people to the Chief Justice concerned who has to ultimately scrutinise the F
list and take a decision on the merit of the candidates without giving room
for any criticism that the selection was whimsical, fanciful or arbitrary or
tainted with any prejudice or bias. It is open to the Chief Justice of the High
Court to _get more particulars· from the Government before taking any
decision in this regard. Once the decision is taken by the Chief Justice of a G
State High Court and the list is forwarded to the Chief Justice of India,
then the opinion of the CJI based on the materials placed before him,
should have the primacy. [865-G-H; 868-E-H]

3.1. The fixation of Judge strength in each of the High Courts is no
doubt an executive function entrusted by Article 216 of the Constitution as H
684 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A 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 Court upon consideration of various factors and as to how
many permanent Judges or how many additional judges are necessary to
be appointed. But there are no manageable standards for the purpose of
B controlling or guiding the discretions of the Union of India in that respect.
(869-H, 870-A]
3.2. There cannot be any mathematical formula to fix the Judge
strength either on the pendency of cases or on the average rate of disposals
per Judge per year. However, there must be periodical review of the Judge
c strength of the Supreme Court and every High Court with reference to the
felt needs for disposal of cases having regard to the backlog and expected
future volume of cases. (870-B-C]

Law Commission of India, 120th Report; referred to.
D
3.3. In spite of the fact that the 11ow of litigations is limited to the
extent possible by the 'Winnowing process' or 'scanning or screening
process', even at the admission stage and by policy of dejudicilization, i.e.,
keeping issues out of the courts, whereby some disputes are settled through
arbitration and mediation, the pendency of cases before courts is mounting
E and there is a dockat explosion. Unless there is an increase in Judge
strength, which alone will deliver long range assistance, the superior courts
cannot fulfill their national duties. (871-G-H, 872-A-F]

3.4. One of the important causes, which constitutes delay in disposal
of cases and enhancement of arrears, is due to the total indolence to
F periodical upward revision of Judge strength. Having a realistic approach
to the raising crescendo of work-load, this Court has on many prior oc-
casions expressed its serious concern and called for remedial measures.
[873-B-C]
G 3.5. 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 justice delivery system.
H Any structure to be internally sound and externally long lasting must be
ADVOCATES ASSN. v. U.0.1. 685

constructed from the foundation. Therefore, this problem of tackling ar- A
rears of the cases as well as speedy disposal of cases, which is a requirement
of Article 21 is a concern of the CJI as well as the Chief Justices of the High
Courts. Therefore, in making the periodical review of the Judge strength of
the superior courts, particularly the High Courts, the President must at-
tach greater weight to the opinion of the CJI and the Chief Justice of the
High Courts and that exercise must be performed with due dispatch. B
[874-B-E]
3.6. Any proposal made. by a Chief Justice of a High Court for increas-
ing the Judge strength of his concerned Court must be routed through the
CJI, who on such recommendation has to express his opinion either by
giving his consent or modifying the recommendation or otherwise for suf- C
ficient and sound reasons and forward the same to the President. Once the
CJI has concurred with the same to the President. Once the CJI has
concurred with the proposal, then the Government should accept that
proposal without putting any spoke in the wheel or disapproving it. The
primary right of proposal of any celebrated judicial strnctural reforms as D
well as reforms by the Constitution and composition of the Court is to vest
only with the judiciary and judiciary alone because those reforms are
concerned only with the judiciary. [874-E-G]

Subhash Shamia & Ors. v. Union of India, [1990) Supp. 2 S.C.R. 433;
refereed to. E
4. Since the duty cast upon the President under Article 216 is a
mandatory obligation, the failure to perform this obligation will certainly
result in negation of the role of laws' delay. Accordingly, such failure to
perform that mandatory duty is justiciable to compel performance of that
duty to the extent and the manner indicated herein. Further, the area of F
justiciability does not extent further to enable the Court to review and fix
the actual Judge strength itself, but it can require the performance of that
exercise in accordance with the recommendation of the Chief Justice of
India. [876-D-F]

5.1. When it is well-recognised that the Courts are an impenetrable G
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 are greatly influenced by adjudicative dispensation of justice
by the presiding impartial Judges 'without fear or favour, affection or
ill-will', it cannot be rightly said that the assurance of the immutable rights H
686 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A and privileges in respect of service conditions alone are sufficient to achieve
the independence of judiciary and to protect it from being impaired and no
other condition is required. [799-G-H; 800-A-B)

K.M. Nanakati v. State of Bombay, [1967] 1 S.C.R. 97 and Commis-
sioner of Income Tax v. Basi Dhar & Sons., [1985) Suppl. 3 S.C.R. 850;
B referred to.

Co/var v. Wheeler et.al., Words & Phrases - Permanent Edition
Volume 9; referred to.

Special Cowts Bill, [1979] 2 S.C.R. 476, referred to.
c
5.2. No doubt true, that the Constitutional assurances, relating to the
basic service conditions are absolutely necessary to protect the inde-
pendence of the judiciary but they are not the be all and end all. More than
this one other basic and inseparable vital condition is absolutely necessary
for timely securing the independence of judiciary; that concerns the
D methodology, followed in the matter of sponsoring, selecting and appoint-
ing a proper and fit candidate to the (Supreme Court or High Court) higher
judiciary. The holistic condition is a major component that goes along with
other constitutionally guaranteed service conditions in securing a complete
independence of judiciary. In other words, a healthy independent judiciary
E can be said to have been firstly secured by accomplishment of the increas-
ingly important condition in regard to the method of appointment of
Judges and, secondly, protected by the fullfilment of the rights, privileges
and other service conditions. The resultant inescapable conclusion is that
only the consummation or totality of all the requisite conditions beginning
with the method and strategy of selection and appointment of Judges will
F secure and protect the independence of the judiciary. Otherwise, not only
will the credibility of the judiciary stagger and decline but also the entire
judicial system will explode which in turn may cripple the proper function-
ing of democracy and the philosophy of this cherished concept will be only
a myth rather than a reality. Thus the independence of judiciary is the
G livewire of the Indian judicial system and ifthat wire is snapped, the 'dooms
day' of judiciary Will not be far off. [800-8-G]

5.3. The Indian Constitution is a radiant and vibrant organism and
under the banner of Sovereign, Socialist, Secular, Democratic Republic,
steadily grows spreading the fragrance of its glorious objectives of securing
H to all citizens; Justice, Social, Economic and Political. [801-A-B]
ADVOCATES ASSN. v. U.O.I. 687

S.4. For securing the above cherished objectives equally to all citizens A
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' "runs through
B
the entire fabric of the Constitution." In other words, it is the cardinal
principle of the Constitution that an independent judiciary is the most
essential characteristic of a free society like ours. Independence of the
judiciary is not genuflexion, nor is it opposition of Government. [801-C-H]
c
S.S. Indisputably, the concept of independence of judiciary which is
inextricably linked and connected with the constitutional process related to
the functioning of judiciary is a 'fixed-star' in the Indian constitutional
consultation and its voice centers round the philosophy of the Constitution.
The basic postulate of this concept is to have a more effective judicial system D
with its full vigour and vitality so as to secure and strengthen the imperative
confidence of the people in the administrative of justice. [802-A-B]

S.6. To have an independent judiciary to meet all challenges, unbend-
ing before all authorities and to uphold the imperative of the Constitution
at all times, thereby preserving the judicial integrity, the person to be E
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 any price, bear
any burden and to meet any hardship and always wedded only to the
principles of the Constitution and 'Rule of Law'. If the selectee bears a F
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 im-
munity. Though it is illogical to spin out a new principle that the key note G
is not the Judge but the judiciary especially when it is accepted in the same
breath that an erroneous appointment of an unsuitable person is bound
to produce irreparable damage to the faith of the community in the
administration of justice and to inflict serious injury to the public interest
and that the necessity for maintaining independence of judiciary is to
ensure a fair and effective administration of justice. Further if this prized H
688 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A concept is injured or maimed even from inside by self-infliction, the
invaluable judicial independence will be devalued and debased. [804-D-G]

5.7. The Judge must be made independent of most of the restraints,
cheeks and punishments which are usually called into play against other
p_ublic officers and he should be devoted to the conscitious performance
B of his duties. For Rule of Law to prevail, judicial independence is of prima
necessity. [805-G-HJ

Subhash Sharma & Ors. v. Union of India, [1990] Supp. 2 S.C.R. 433,
relied on.
c 5.8. Implementation of Article 50 involves as a necessary conse-
quence of the power of appointment being taken away from the Executive
and its transference to the Judiciary. Article 50, being one of the fundamen-
tal principles of goverance of the country and constitutionally binding on
the Government the latter is obviously voluntarily to refrain from any
D interference in judicial appointments and reduce its role to one which is
purely formal or ceremonial, ensuring that the decisive factor is the wish
and will of the judicial family. [808-D-E]

5.9. Realising the significance of the independence of judiciary and
in order to give a full life to that concept, the founding fathers of the
E Constitution, felt the need of separation of judiciary from executive and
designedly inserted Article 50 in the Constitution after a heated debate;
because the judiciary under the constitutional scheme has to take up a
positive and creative function in securing socio-economic justice to the
people. [808-G-H; 809-A]
F
5.10. According to Article 36, the definition of the expression 'the
State' in Article 12 shall apply throughout Part IV, wherever that word is
used. Therefore, it follows that the expression 'the state' used in Article 50
has to be construed in the distributive sense as including the Government
and Parliament of India and the Government and the Legislature of each
G State and all local or other authorities within t~e territory of India or
under the control of the Government .of India. When the concept of
separation of the judiciary from the executive is assayed and assessed that
concept cannot be confined only to the subordinate judiciary, totally
discarding the higher judiciary. If such a narrow and pedantic or syllogis-
H tic approach is made and a constricted construction is given, it would lead
ADVOCATES ASSN. v. U.0.1. 689

to an analamou~ position that the Constitution does not emphasise the A
separation of higher judiciary from the executive. (810-C-E]

5.11. In a democratic polity, the supreme power of the State is shared
among the three principal organs • constitutional functionaries • namely,
the legislature, the executive and the judiciary. Each of the functionaries
is independent and supreme within its allotted sphere and none is superior B
to the other. Justice has to be administered through the Courts and such
administration would relate to social, economic and political aspects of
justice as stipulated in the preamble of the Constitution and the judiciary,
therefore, becomes the most prominent and outstanding wing of the con-
stitutional system for fulfilling the mandate of the Constitution. (811-B·D] c
5.12. The constitutional task assigned to the judiciary is in no way
less than that of other functionaries - legislature and executive. Indeed, it
is the role of the judiciary in carrying out the constitutional message, and
it is its responsibility to keep a vigilant watch over the fur.ctioning of D
democracy in accordance with the dictates, directives and imperative
commands of the Constitution by checking excessive authority of other
constitutional functionaries· beyond the ken of the Constitution. In that
sense, the judiciary has to act as a sentinel on the qui vive. However, it is
made clear that it is not an attempt to get the judiciary locked up in a
power struggle either for social aristocracy or judicial imperialism of its E
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. (811-D-E, 812-A·B]
F
5.13. Incontrovertibly, the CJI being at the helm of the judicial
system is the principal protector of judiciary showing his keen insight into
the practical problems of the judicial system from beginning to end. In
fact, the CJI has a pride of place in the Constitution. (812-B-C]

5.14. The Indian judicial system being pyramidic in character is an G
integrated one in contradistinction to the dual system of some other
countries. The Indian judicial system is vertically structured with this
Court (Supreme Court) at the apex with the intervening layers consisting
of subordinate judiciary at the grassroots level, district Judge at the
middle level and the High Court at the State level. [812-D-E] H
690 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 6. This Court is the highest Court of the land and its vitality is a
national imperative. Hence the primary institutional task of this Court is,
avalanche of various judicial pronouncements necessarily involves con-
sideration of the constitutional provisions. To combat and deal with all
these controversies, issues and problems which are always open for judi-
cial interpretation, the Courts have to undertake an onerous mission in
B
exploring the 'real intention' and 'original meaning' of the Constitution
beyond all obscurities and to expound the principles underlying the
philosophy of the Constitution and declare what the Constitution speaks
about and mandates. In the above institutional task, the Court does not
create any new right not known to the constitutional text or history but
c merely discovers and announces only the existing right so far hidden under
the surface on a better understanding of the values of the underlining
intent and spirit of the Constitution in the light of a new set of conditions.
The inevitable truth is that law is not static and immutable but ever
increasingly denamic and grows with the ongoing passage of time.
D [782-B-H; 783-A-D]

7. It falls upon the superior courts in large measure the responsibility
of exploring the ability and potential capacity of the Constitution on a
proper diagnostic insight of a new legal concept and making this flexible
instrument serve the needs of the people of this great nation without
E sacrificing its essential features and basic principles which lie at the root of
Indian democracy. However, in this process the Court's main objective
should be to make the Constitution quite understandable by stripping away
the mystique and enigma that permeate and surround it and by clearly
focussing on the reality of the working of the constitutional system and
F scheme so as to make the justice delivery system more effective and
resilient. Although frequent over-ruling of decisions will make the law
uncertain and later decisions unpredictable and this Court would not
normally like to re-open the issues which are concluded, it is well settled
that it is emphatically the province and essential duty of the superior
Courts to review or reconsider its earlier decisions, if so warranted under
G compelling circumstances and even to over-rule any questionable decision,
either fully or partly, if it had been erroneously held and that no decision
enjoys absolute immunity from judicial review or reconsideration on a fresh
outlook of the constitutional or legal interpretation and in the light of the
development of innovative ideas, principles and perception grown along
H with the passage of time. This power squarely and directly falls within the
ADVOCATES ASSN. v. U.O.L 691

rubric of judicial review or reconsideration. Therefore, in exceptional and A
extraordinary compelling circumstances or under new set of conditions, the
Court is on a fresh outlook and in the light of the development of innovative
ideas, principles and perception grown along with the passage of time,
obliged by legal and moral force to reconsider its earlier ruling or decision
and if necessitated even to over-rule or reverse the mistaken decision by the B
application of the 'principle of retroactive invalidity'. Otherwise ever the
wrong judicial interpretation that the Constitution or law has received over
decades will be holding the field for ages to come without that wrong being
corrected. Indeed, no historic precedent and long term practice can supply
a rule of unalterable decision. [pp. 783-D-H; 784-A; 785-D-E]
c
His Holiness Kesavananda Bharati Sripadagalavarn v. State of Kera/a,
[1973] Supp. S.C.R. 1; J.C. Golak Nath & Ors., v. State of Punjab & Anr.,
[1967] 2 S.C.R. 762; Waman Rao & Ors. etc etc. v. Union of India and Ors.,
[1981] 2 S.C.R. 1; Minerva Mill Ltd. & Ors. v. Union of India, [1961] 1 S.C.R.
206; Synthetics & Chemicals Ltd., etc. v. State of U.P. and Ors., [1989] Supp. D
1 S.C.R. 623; Secretary, lnigation Department, Government of Orissa and Ors..
v. G.C. Roy andAnr., [1992] 1S.C.C.508; Raghunathrao Ganpatrao v. Union
of India v. Sankal Chand Himatlal Sheth &Anr., (1978] l S.C.R. 423; Union
of India v. J.P. Mitter, [1971] 3 S.C.R. 483 and Sub-Committee on Judicial
Accountability v. Union of India, [1991] 4 SCC 699, referred to.
E
The Bengal Immunity Company Limited v. The State of Bihar and
others, [1955] 2 SCR 603; Shamsher Singh and Another v. State of Punjab,
[1975] 1 SCR 814; Delhi Transport Corporation v. D. T.C. Mazdoi:Jr Congress
and Others, [1991] Supp. 1 SCC 600; Subhash Sharma and Others v. Union
of India, [1990] Supp. 2 SCR 433; Kihoto Hollohan v. Zechillhu & Ors., F
[1992] Supp. 2 SCC 651; Indra Sawhney and Others v. Union of India,
[1992] Supp. 3 SCC 210 and Union of India v. Tutsi Ram Patel, [1985]
Supp. 2 SCR 131 at pages 273 and 274, referred to.

M.M. Gupta and Others v. State of Jammu and Kashmir [1982] 3 SCC
412 and Manbodhan Lal Srivastava v. State of U.P., [1958]. SCR 533, G
referred to.

Fletcher v. Minister of Town Planning, [1947] 2 All E.R. 496;
Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR 666
and Shamsher Singh &Anr. v. State of Punjab, [1975] 1 SCR 814, referred to. H
692 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Shorter Oxford English Dictionary, Webster's Encyclopedic Unabridged
Dictionary of the English Language, Black's Law Dictionary, Stroud's Law
Lexicon; Corpus Juris Secundum, Vol. 16A at page 1243 and Words and
Phrases, • Permanent Edition volume 9, referred to.

Commissioner of Income Tax v. Basi Dhar & Sons, [1985] Suppl. 3
B SCR 850 at 868; State of Tamil Nadu v. Neelai Cotton Mills, [1990] 2 SCR
33 at 38-39; F.S. Gandhi v. Commissioner of Wealth Tax, (1990] 2 SCR 886
at 897 and Keshavji Ravji v. Commissioner of Income Tax, [1990] 1 SCR
243 at 257, referred to.

C Port Louis Corporation v. Attorney General, [1965] AC 1111 at 1112
and P.C. & Chandra Mohan v. State of Uttar Pradesh & Ors., [1967] 1 SCR
77 at 83, referred to.

State of Uttar Pradesh & Ors. v. Radhey Shyam Nigam & Ors. etc. etc.,
[1989] 1 SCR 92; Shri Dehaganesan Metals v. M.R. Shanmugham Chetty &
D Ors., (1987] 2 SCC 707; State of u.P. v. Manbodhan Lal Srivastava, [1958)
SCR 533; Ram Gopal v. State of Madhya Pradesh, [1970) 1 SCR 472; A.N.
D'Silva v. Union of India, (1962) Supp. 1 SCR 968 and All India Judges'
Association & Others v. Union of India & Others, (1993) 4 JT 618, referred
to.

E Texas Law Review (Volume 44) 1966; Vide Law Commission of India
(One Hundred Twenty-first Report Page 38 para 6, 36 & 14th Report of the
Law Commission vide para 82 at page 105, referred to.

Kanubhai Brahmbhatt v. State of Gujarat, [1987) 2 SCR 314 and P.N.
Kumar v. Municipal Corporation of Delhi, [1987) 4 SCC 609 at 610, referred
F to.

R.K. Hegde, The Judiciary Today : A Plea for Col/egium, 38; The
Framing of India's Constitution Volume, 18 Page 196; Justice Krishna Iyer :
Mainstream, November 22, 1980 and One Hundred and Twenty First Report
G of the Law Commission of India, July 1987 at page IO, referred to.

Carfield Barwick, "The State of Anustralian Judicature'~ 51 Aus. LJ.
480;Harry Gibbs; "The Appointment ofJudges'~ 61 Aus. LJ. 7, 8; videSpecial
Reference No. 1 of [1964-1965) 1 SCR 413 at 447 F-H and 448 A· B; Bradly
v. Fisher, 80 US 335 [1871]; Words and Phrases - Permanent Edition Volume
H 9, Town v. Eisner, 245 U.S. 418; Minister of Home Affairs and Another v.
ADVOCATES ASSN. v. U.O.I. 693

Fisher and Another, [1979] All ER 21; Taxas Law Review (volume 44) 1966 A
at page 1068 and 1071 and 'The role of the Trial Judge in the Anglo American
System, ABAJ 125, 127 [1964], referred to.

Per Ahmadi, J. [Dissenting but partly agreeing]

1.1. The concept of judicial independence is deeply ingrained in the B
Constitutional scheme and Article 50 illuminates it. The degree of inde-
pendence is near total after a person is appointed and inducted in the
judicial family. [940-E]

1.2. The Judiciary in India plays a more active role in selecting C
Judges at all levels than in other countries. [p.910-B]

1.3. On a plain reading of Article 217(1) it becomes abundantly clear
that the power to appoint a judge of the High Court is vested in the
President and must be exercised by a warrant to be issued in that behalf
under his hand and seal. This power, however, must be exercised 'after' D
consultation with (i) the Chief Justice of India (ii) the Governor of the
State and (iii) in the case of appointment of a judge other than the Chief
Justice, the Chief Justice of the High Court. 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. [903-8-C]
E
1.4. The power of the President to make an appointment to the Union
Judiciary is circumscribed or limited by the requirement of prior consult-
ation. [912-E]

1.5. Insofar as appointments at the level of district judges are F
concerned under Article 233, the Governor has to make the appointment.
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 G
consulted and its view obtained before the appointment is made. 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 H
694 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A law that the High Court's control under Article 235 extends to transfer as
well as disciplinary matters. It is only in cases of dismissal or removal or
reduction in rank to a lower cadre that the High Court has to seek the
Governor's order, be being the appointing authority, but it is settled law
that ordinarily he must act on the recommendation of the High Court.
[907-D-H, 908-A]
B
Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2
S.C.R. 666; State of West Bengal v. Nripendra Nath, [1966] 1 S.C.R. 771 and
State ofAssam v. Ranga Mahammad & Ors., [1967] 1 S.C.R. 454, referred to.

1.6. The anxiety of the Constitution makers to ensure that justice
C promised in the Preamble of the Constitution is pure and is not in any
manner polluted by executive or political interference is writ large on the
face of the Constitution. Extraordinary powers have been conferred on the
Supreme Court and the High Courts under Articles 32 and 226, respec;-
tively, manifesting the confidence of the people in the courts' ability to do .
D justice. [907-A-B]

2.1. The governmental powers are ordinarily divided into (i) executive
(ii) legislative and (iii) judicial. The power to appoint judges to the superior
courts is an executive function. By virtue of Article 53 the executive power is
undoubtedly vested in the President which he must exercise 'in accordance
E with this Constitution'. Similarly, under Article 154 the executive power of
the State vests in the Governor which he must exercise in accordance with
the Constitution. Articles 73/162 provide that subject to the provisions of
the Constitution, the executive power of the Union/State shall extend to
matters with respect to which Parliament/State Legislature has power to
F make laws. The argument that since neither List I nor List III in the Seventh
Schedule empowered the making of any law regarding appointments to the
superior judiciary it must be presumed that the power exercised by the
President was not one which would attract Article 74(1) of the Constitution,
overlooks the fact that Article 248 and the residuary entry 97 in List I by
G which exclusive power is conferred on Parliament to make laws even in
respect of subject not specifically covered. [928-G-H; 929-A-C]

2.2. 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
H within the legislative entries only. Both the President and Governor are
ADVOCATES ASSN. v. U.O.I. 695

formal heads and the executive power of the Union/State has to be exer· A
cised in the name of the respective heads. The President as well as 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 precise language of Article 163(1~ uses the words "except B
in so far as he is 'by or under' this Constitution required to exercise his
functions or any of them in his discretion". The words carving out the
exception are not to be found in Article 74(1). [929-C-E]

Shamsher Singh v. State of Punjab, [1975] 1 S.C.R. 814, relied on.

2.3. Since Articl~ 217(1) does not say that the said executive func-
c
tion, the Governor must perform in his discretion it is obvious that in the
matter of appointments to the superior judiciary the Governor must act
according to the aid and advise received from his Council of Ministers.
Similarly by virtue of Article 74(1) the President is obliged to act on the
advice of the Council of Ministers. Under Articles 75(3) and 164(2) the D
Council of Ministers are collectively responsible to the House of the People
in the case of the Union and the Legislative Assembly in the case of the
State. If the President or Governor refuse to act on the advise of their
Council of Ministers, it would result in a constitutional crisis. Therefore,
no doubt that in the form of parliamentary democracy which has been E
adopted by India, the President and the Governors are symbolic heads and
so Jong as their Council of Ministers exist they must abide by their advice
except where the Governor is required by or under the Constitution to act
in his discretion. [929-G-H; 930-A-B]

3.1. The method of selecting a Judge for the Supreme Court and the F
High Court is outlined in Articles 124(2) and 217(1) of the Constitution.
While in some of the foreign countries, appointments to the superior
judiciary are exclusively Ly the executive, the Constitution has chartered
a middle course by providing for 'prior consultation' with the judiciary
before the President, i.e. the executive, makes the appointment to the G
Supreme Court or the High Court. [940-F-G]

3.2. Insofar as appointment to the High Court under Article 217 (1)
is concerned, the appointment has to be 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 High Court and H
696 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A the Governor of the State. Consultation with the.se functionaries is a
condition precedent and a sine qua non to appointment. [911-H; 912-A]

33. Article 124(2) provides for the appointment of a Supreme Court
Judge. It empowers the President to appoint a Judge to the Supreme Court
'after' consultation with such of the Judges of the Supreme Court and of the
B High Courts in the States as he may deem necessary for the purpose. The
zone of consultation is very wide, he may consult one or more of the
Supreme Court Judges and any number of the numerous High Court judges
in the country. The proviso to Article 124(2) says that in the case of appoint·
ment of a judge other than the Chief Justice, the Chief Justice of India 'shall
C always be consulted'. There is no controversy that the proviso mandates
consultation with the Chief Justice of India. (908-H; 909-A-B]

3.4. It is clear from the provisions of the Constitution that the power
of appointment is vested in the President and has to be exercised in the
manner set out in these provisions. [p.904-G]
D
3.5. Throughout, the entire scheme is that the power is to be exer-
cised by the President or where the power is conferred on the Chief Justice,
he has to exercise it with the President's consent. [904-G-H; 905-A]

4.1. Since the Constitution makers were alive to the need to insulate
E the judiciary from external pressures, they introduced the concept of
consultation with the Judicial Wing to limit and check the absolute discre-
tion of the executive in the matter of appointments to the superior
judiciary. They achieved this by introducing the concept of compulsory
consultation with the judiciary before the appointments are made to the
F superior judiciary. That is why Articles 124(2) and 217(1) provide that the
appointments under the said provisions shall be made 'after consultation'
with the Chief Justice of India and others. But it cannot be said that the
Constitution-makers intended to denude the executive of all its pow~r of
appointment by providing for consultation with the Chief Justice of India
G and others. Such a view is not permissible on the plain language of the
Constitution even if the word 'consultation' is understood in the backdrop
of the need to strengthen the concept of judicial independence. [918-E-G]

4.2. 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
H that, consultation with him is a must before any decision contemplated
ADVOCATES ASSN. v. U.0.1. 697

under those provisions is finalised. Since the expression of opinion in A
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 217(1) of the Constitution. This is a matter
B
which touches the other two aspects of primacy. (919-F -HJ

4.3. It is evident from the relevant provisions of the Constitution
concerning the judiciary that the Constitution has used different expres-
sions to meet with different situations. The word 'consultation' is used in
Articles 142(2), 217(1) & (3) and 233(1), the expression 'previous consent' c
is used in Articles 127, 128 and 224-A, the word 'recommended' is used in
Article 233(2), and the word 'approval' is used in Article 145 and proviso
to Article 229(2) of the Constitution. Thus, in the matter of appointment to
the superior judiciary, the President can exercise his power of appointment
only after he has completed the process of consulting certain constitutional D
functionaries, in the process of appointment of ad hoc judges or retired
judges to sit on the Bench, the power can be exercised with the 'previous
consent' of the President, in the case of making of rules the 'approval' of
the President/Governor is necessary and in the case of appointment to the
post of district judge, recommendation of the High Court is envisaged. So
also in the case of transfer or determination of age, consultation with the E
Chief Justice of India is a must. It will thus be seen that different expres-
sions are used to convey different meanings. The plain language of Articles
124(2) and 217(1) does not convey that the process of consultation means
concurrence with the view of the Chief Justice of India. [p. 916-D-H]

F
4.4.The word 'consult' as understood in ordinary sense means to ask
or seek advice or the views of a person or any given subject i.e. to take
counsel from another, but it does not convey that the consultant is bound
by the advice. In certain situations an expert in the field may be consulted
but it is (lnly to help the consultant to take a final decision. By consulting
even an expert the consultant does not mortgage his decision, the advice G
1

given is only an in-put among the various factors which enter decision
making. He may consult one or more experts and he may accept the advice
he considers most acceptable or rational but he is always free to reach his
own conclusion. It is ultimately his responsibility to reach a sound decision
and he is accountable for the same. Consultation would require at least H
698 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A two persons, they may consult each other by correspondence or by sitting
across the table. A may consult B on a given subject, obtain the opinion of
B and act on it or he may, if not satisfied, discuss the issue with him or
convey his doubts in writing, seek his clarification and if satisfied accept
the advice or depart therefrom. [p. 920-C-F]

B R. Pushpam v. The State of Madras, A.I.R. (1953) Madras 392,
referred to.

Fletcher v. Minister of Town Planning, [1947] 2 All England Reports
469; Rollo and Anr. v. Minister of Town & Country Planning, [1948] 1 All
C England Reports 13; Port Louis Corporation v.Attomey General, Mauritius,
(1965) Appeal Cases 1111 and R. v. Secretary of State for Social Services,
exparte Association of Metropolitan Authorities, [1986] 1 All England
Reporter 164, referred to.

4.5. Constitution is an ever evolving organic document, which cannot
D be read in a narrow, pedantic or syllogistic was but must receive a broad
interpretation. The Constitution being a growing document its provisions
can never remain stated and the Court's endeavour should be to interpret
its phraselogy broadly so that it may be able to meet the requirements of
an eve-changing society. But while it may be permissible to give an enlarged
E or expanded meaning to the phraseology used by the Constitution makers,
and it may be permissible mould the provisions to serve the needs of the
society, and it may even be permissible in certain extreme situations to
stretch the meaning and, if necessary, bend it forwards, it would certainly
be impermissible to break it or in the guise of interpretation to replace the
provisions or re-write them. [922-G-H; 923-A-B]
F
4.6. Giving the widest connotation to the word 'consultation', stretch-
ing it almost to the breaking point, it is not possible·, in the constitutional
context and having regard to the constitutional scheme to attribute to it
the meaning of 'concurrence' or 'consent'. [923-8-C]
G State of U.P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533, relied
on.

4.7. 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
H executive had no choice but to follow it; to so hold would be to bestow a
ADVOCATES ASSN. v. U.O.I. 699

right of veto on the Chief Justice of India which does not fit in with the A
constitutional scheme. It was said that the object of providing for consult-
ation 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 decided to
transfer the power of appointment to the Chief Justice ·of India. In that B
case 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 intent to vest the final
say in the Chief Justice of India. (923-F -H; 924-A]

Union of India v. Sankal Chand Himatlal Sheth & Anr., (1978] 1 C
S.C.R. 423, relied on.

In Re the Special Courts Bi/4 (1978] (1979] 2 S.C.R. 476 and S.P.
Sampath Kumar etc. v. Ul'ion of India & Ors., (1987] 1 S.C.R. 435, referred
to.
D
5.1. Under the coi::stitutional scheme, prior consultation with the
Chief Justice of India is a must under Articles 124(2) 217(1), 217(3) and
222(1) but the weight to be attached to views of the Chief Justice of India
would depend on whether it is at the pre-appointment stage or the post- ,,_
appointment stage and whether he is one of the consultees or the sole E
consultee. (941-8-C]

5.2. The concept of primacy to be accorded to the views of the Chief
Justice of India has three elements, namely, (a) primacy as 'paterfamilias'
of Indian Judiciary, (b) primacy to be accorded to his views amongst the
consultees mentioned in Articles 124(2) and 217(1) and (c) primacy in the F
sense that the opinion of the Chief Justice of India would be binding on
the President, i.e., the executive. (941-C-D]

5.2.1. The position of the Chief Justice of India under the Constitu-
tion is unique, in that, on the judicial side he is primus inter pares, i.e. first G
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 H
700 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A colleagues; more so, if he has expressed them after assessing the views of
his colleagues but his views will not eclipse the views of his colleagues
forbidding the President, i.e. the executive, from relying on them. The
weight to be attached to his views would be much greater as compared to ·
the weight to be accorded to the view of the other consultees under At:ticle
B 217(1) since he has had the advantage of filtering their views and ordinari-
ly his views should prevail except for strong and cogent reasons to the
contrary but that does not mean that the views of the other consultees
would be rendered irrelevant or non-est forbidding the President, i.e.
executive, from noticing or relying on them. The views of the Chief Justice
of India would be entitled to even greater weight when he is the sole
C consultee under the Constitution, e.g. Article 222(1), more so when it
concerns a member of the judicial family and ordinarily his view should
be accepted and acted upon by the President, i.e. the executive, unless there
are compelling reasons to act otherwise to be recorded in writing so that
the apprehension of the executive having acted in a manner tantamounting
D to interference with judicial independence is dispelled. Thus graded weight
has to be attached to the views of the Chief Justice of India as indicated
hereinabove. (941-E-H & 942-A-C]

5.3. On a plain reading of the Article 217(1), it is clear that the
President is empowered to make these appointments after consultation
E with the three constitutional functionaries. The Article doos not give any
indication of any hierarchy among the three consultees, although the
proposal ordinarily emanates from the Chief Justice of the State and
thereafter goes to the executive. It is only after the Governor has cleared
it that the Chief Justice of India is consulted. These three functionaries
F are those who are consulted, they have a consultative role to play in the
appointment of a High Court judge but the ultimate power of appointment
rests in the President who must act in accordance with Article 74(1) of the
Constitution. The power conferred on the President is not an absolute or
arbitrary power but the same is chedced, circumscribed and conditioned
by the requirement of prior consultation with the three Constitutional
G functionaries. The consultation must be complete, purposive and meaning-
ful and cannot be treated as a mere idle formality. If the consultation is
found to be a mere empty formality without effective exchange of views, the
appointment would be vitiated and the whole exercise may ultimately turn
out to be loves labour lost. Each of the three constitutional functionaries
H holds a high constitutional position and in the absence of express words,
ADVOCATES ASSN. v. U.0.1. 701

it cannot be said there is a hierarchy envisage by the said provision. The A
Chief Justice of the High Court must be attributed intimate knowledge
regarding the quality of legal acumen of the members of the Bar chosen
by him for appointment. Since he has the opportunity to watch the perfor-
mance of members of the Bar at close quarters, he is best suited to assess
the worth of the candidate relating to his legal knowledge, acumen and
similar other qualities, including his willingness to work hard and his
B
temperament to discharge judicial functions. From that point ofview 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 c
would be able to collect information regarding the honesty and integrity of
the individual and certain other related 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 per-
sonality of the candidate proposed for appointment. The Chief Justice of D
India being 'pater familias' of 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 be entitled to greater weight since he had the benefit of E
filtering the views of the other two consultees on the question of suitability
on the proposed candidate, but it cannot mean that his view will totally
eclipse the view of the others forbidding the executive to evaluate it before
formulating its advice to be tendered to the President. [912-D-H; 913-A-E]
F
5.4. Article 124(2) provides for the appointment of a Supreme Court
Judge. The mode of appointment is the same as in the case of a High Court
judge i.e. by warrant under his hand and seal. But here again the exercise
of power is controlled, checked and circumscribed by the need for prior
consultation with such of the judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary. Reference to G
the expression 'such of the judges' must include the Chief Justice of India
in the case of the former and the Chief Justice of the High Courts in the
case of the latter. If such a construction is not placed it would lead to the
absurd situation of the Chief Justices of various High Courts being
excluded from the zone of consultation. The Chief Justice of India would, H
702 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A in any case, have to be consulted by virtue of the proviso to that clause
because it mandates that in the case of appointment of a judge other than
the Chief Justice, the Chief Justice of India 'shall always' be consulted.
Thus, while the proviso obligates consultation with the Chief Justice of
India, the text of clause (2) stretches out the zone of consultees and leaves
B it to the President to consult one or more from amongst that broad band
of consultees. But consult he must before he make the appointment.
[913-F-H & 914-A-B]

S.S. The practice which is hitherto followed reveals that the Central
Government's understanding of Article 124(2) is that it is not incumbent
C 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 consult-
ation is deemed necessary. If primacy is to be accorded to the views of the
Chief Justice of India, the views of the other consultees would become
redundant and will at best serve the purpose of persuading the Chief
D Justice of India to change his views but if he does not, the.views of the other
consultees will be rendered nugatory. [914-E-G]

S.6. In the process of selection of candidates for appointment to the
superior judiciary of the country every effort must be made both by ~e
E executive wing as well as the judicial wing to arrive at a consensus i.e. a
common understanding and in the majority of cases there is no reason why
it should not be possible. The executive and the judiciary do not work at
cross purposes, in fact their objective is common and, therefore, it would
really be surprising if there is lack of understanding in a wise range of cases
between them. The executive and the judiciary are not adversaries, they are
F not supposed to work at cross purposes, and therefore, it is not surprising
if in a vast majority of S47 appointments made from 1.1. 1983 to 10.4.1993
barring seven they have reached an agreement on the selection of the
candidates for appointment. In the absence of statistical information, there
is no justification in believing that in all these cases it was the executive
G which yielded to the views of the Chief Justice of India. 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. That being so, it is difficult to appreciate that the
executive had conceded primacy to the views of the Chief Justice of India
by making S40 of the S47 appointments with the concurrence of the Chief
H Justice of India. Even otherwise to rely on such a tenuous circumstance for
.'\DVOCATESASSN. v. U.0.1. 703

interpreting and understanding constitutional questions of great sig- A
nificance would be a desperate attempt like clutching at a straw.
[915-D-H; 916-A-D]

5.7. There being no hierarchy contemplated by Article 217(1), each
consultee has a definite contribution to make which need not be ignored.
It would be unfair if the opinion of the other consultees is rendered B
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 consultees his word will be final. [927-F-H; 928-A]
c
5.8. Therefore, however convincing it may sound to the ideal of
judicial independence that the views of the Chief Justice of India must have
primacy as his views expressed after consulting his two seniormost col-
leagues would be symbolic of the views of the entire judiciary, this cannot
be accepted unless Constitution is amended. Such a view may tend to make
the Chief Justice of India insensitive to the views of the other consultees D
and may embroil him in avoidable litigation. If the President has to act on
the aid and advise of the Council of Ministers, it is difficult to hold tlu:t
he is bound by the opiIJion of the Chief Justice of India unless it is held
that the Council of Ministers including the Prime Minister would be bound
by the opinion of the Chief Justice of India, a construction which is too E
artificial and strained to commend acceptance. Such an interpretation of
the constitutional provisions would tantamount to rewriting the Constitu-
tion under the guise of interpretation which would distort the judicature
fabric found woven into the Constitution. In the circumstances, the
majority view in S.P. Gupta's case does not require reconsideration on this
aspect of the matter. [940-G-H; 941-A; 928-C-F] F

S.P. Gupta v. Union of India, [1982] 2 SCR 365, partly followed.

6.1. There is nothing in the language of Article 222(1) to rule out a
second transfer of a once transferred judge without his consent but or- G
dinarily the same must be avoided unless there exist pressing circumstan-
ces making it unavoidable. Ordinarily a transfer effected in public interest
may not be punitive but all the same the Chief Justice of India must take
great care to ensure that in the guise of public interest the judge is not
being penalised. [942-C-D] H
704 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A 6.2. The various aspects of the transfer policy have been discussed at
length in two decisions of this Court, viz., in Sakal Chand Sheth's case and
S.P. Gupta's case. It has been clearly held that the transfer must be in public
interest to subse..Ve the needs of administration of justice. [930-D]

6.3. Article 222(1) enjoins prior consultation with the Chief Justice
B
of India alone and hence his view would not reflect the views of the
judiciary as the plurality concept is absent. It is correct to say 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 not viewed as an instrument to subvert the judiciary. Since here the only
C 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. And since this is a post-appoint-
ment stage, the view of the Chief Justice of India will have a greater say in
the matter because exercise of the power to transfer a member of the
D judiciary by the executive is likely to be misunderstood as executive's effort
to uµdermine the independence of the judiciary. The weight to be attached
to the views of the Chief Justice of India in this field would be much more
than what his opinion would carry at the pre-entry stage. Since the transfer
can be effected in public interest only that requirement or limitation would
safeguard judicial independence. When a puisne judge is transferred to
E take over as a Chief Justice elsewhere such a transfer would never be
construed as penal because of the elevation involved in it but where the
transfer is a second one qua the individual it is likely to be so interpreted
and hence a far greater responsibility is case on the Chief Justice of India
during the consultation process to take even precaution to see that it is
F not so. Once this care is taken there is nothing in Article 222(1) to limit
the power to only one transfer without the concerned judge's consent and
there after only with his consent. [930-E-H & 931-A-D]

7 .1. On the mode of selection for appointment to the Supreme Court,
except for general platitudinous exchanges at the Bar, no concrete sugges-
G tion emerged which could be followed by the Chief Justice of India in the
matter of choice of candidates for appointment to the Supreme Court. So
also no specific points were formulated for laying down any guidelines to
be followed by the Chief Justice of High Courts for appointments to be
made to the High Court. In such circumstances, it would be hazardous to
H lay down any guidelines in this behalf. [931-D-F]
ADVOCATES ASSN. v. U.O.I. 705

7.2. This Bench was constituted to consider the two points specifically A
mentioned in Subhash Shanna's case to which the pleadings are restricted
and no question was specifically 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 the Bar it
is unwise to express any opinion in this behalf. It is a well recognised pithet
of constitutional wisdom that in constitutional matters the courts do not
B
decide what is not brought before them nor would it proffer advice except in
a reference under Article 143, on the wisdom or validity of a future action.
Therefore, 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 since Judges have chosen to lay down certain guidelines or norms c
in regard to appointments which would be obiter dicta only, and which, 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, it must be clearly expressed lest
silence is construed as consent. [931-F-H & 932-A-B]
D
7.3. The entry into the superior judiciary is by invitation and judges
constituting the superior judiciary are not stricto-sensu civil servants. The
functions to be performed by those constituting the superior judiciary are
totally different from those performed by the district judges. Similarly, the
nature of duties are functions undertaken by judges of the apex court are E
different from those at the High Court level. Therefore, to say that in the
matter of appointment to the apex court inter-se seniority in the concerned
High Court and at the combined seniority at the all-India level should be
given due weight unless there be strong cogent reasons to justify a depar-
ture would, to say the least, create a host of problems. For example, if the p
first four judges in the all-India seniority are from a single High Court
and all of them are appointed, the 'representative' character of the Court
will be disturbed. For instance, if the senior most judge of High Court X
is at serial No. 50 in the all-India seniority and there is no judge in the
apex court from the High Court, which is one of the major High Courts,
the Chief Justice of India will find it difficult to nominate him for appoint- G
ment and, if he does, there is every possibility of his seniors questioning
the decision of the Chief Justice of India in Court. [932-B-F]

7.4. In order to maintain the representative character of the High
Courts and the Supreme court so that people of all hues have confidence H
706 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A in the institution, the rule of seniority, which may be valid for Civil Services
(even in Civil Services the higher posts are filled on merit), can have no
application to constitutional functionaries. So also the 'legitimate
expectation' doctrine can have no relevance in determining the suitability
of the appointee. [922-F-G]

B 7.5. The seniority principle and the legitimate expectation doctrine
are incapable of realistic application as they would destroy the repre-
sentative character of the superior judiciary which is absolutely essential
for every segment of society to have confidence in the system and they
would only push merit to the second place. Appointments to the superior
C judiciary should be solely on merit and other suitability factos and not on
the basis of inter se seniority in the High Court or placement in the
combined all-India seniority list. There can be no room for the legitimate
expectation doctrine in cases where appointments are on merit and by
inv~tation. However, where both the candidates under consideration are of
equal merit, inter-se seniority may have a role to play, subject to other
D requirements for maintaining the representative character, etc., being
satisfied. Therefore, the application of these two principles in the matter
of choice of candidates for the superior judiciary is fraught with dangers.
[932-G-H; 933-A-C]
8.1. The question of fixation of judge-strength under Article 216 is
E
justiciable, in that, a limited mandamus can issue to the executive to
perform its constitutional duty to determine within a reasonable time the
strength of permanent Judges required for the disposal of cases instituted
in the various High Courts and to take steps to fill up the vacancies after
making such determination as indicated by one of the Judges in S.P.
F Gupta's case. But this would be in the rarest of rare cases where there exist
glaring and compelling circumstances which would force the hands of the
Court. [936-D-E-940-C-D]

S.P. Gupta v. Union of India & Ors., [1982] 2 S.C.R. 365, relied on.
G 8.2. There is no doubt that every High Court with the exception of one
or two has swollen dockets. The backlog is substantial in these High Courts.
Because of diverse reasons, not entirely of the making of the judiciary, the
judicial system has not been able to keep its implied promise to dispense
justice within a reasonable time. This is essentially on account of the fact
H that not sutlicient attention has been paid to modernise the Indian judicial
ADVOCATES ASSN. v. U.O.I. 707

system, co-operation from those connected with the system has been grudg- A
ing and the members of the profession too have contributed by frequent
adjournments and strikes. The executive too has not been able to contain
its litigation docket and a tendency is clearly discernible that even high
ranking officers are not prepared to take responsibility and find it easy to
rest the responsibility on the judiciary. Politico-legal issues are also
diverted to courts which consume a lot of judicial time. There has been an B
environmental degradation which has also affected the work culture of the
judiciary. The service conditions of judges are no more attractive, they take
no notice of the earnings of an average lawyer, with the result that recruit-
ment from the Bar of persons of the right stamp is difficult which slows
down the disposal of cases and increases appellate and revisional work. c
Judge-strength is only a small contributing factor. Here also one cannot
lose sight of the fact that there is always an optimum strength beyond which
it would be 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 l>eing engaged before
another judge may render the other judges idle. It would, therefore, be D
wrong to think that the increase in the judge-strength alone will solve the
problem of arrears; it may, if scientifically worked out, certainly ease the
same. [933-E-H; 934-A-D]

8.3. What is really necessary is to effectively manage the dockets. E
Judge-strength by itself will not make a very substantial impact unless the
entire system is modernised with the help of computers etc., and a virtual
crusade is undertaken with the help of the members of the profession, the
executive and the judiciary to combat laws delays. [934-D-G]

8.4. Increase in the judge-strength may somewhat ease the problem F
of delay in the disposal of cases. Article 216 provides that every High Court
shall consist of the Chief Justice and such other judges as the President
may from time to time deem it necessary to appoint. The Article clearly
casts a duty on the President, i.e. the executive, to decide from time to time
on the number of judges necessary to be appointed in every High Court. G
The words 'deem it necessary to appoint' when read with 'from time to time'
leave nothing to dou_bt that the Article envisages periodical assessment of
the judge-strength by the executive in respect of each High Court. This is
undoubtedly a constitutional obligation which must be performed in time
and without delay. This provision does not provide for consultation with
the judicial wing but normally the Chief Justice of the High Court initiates H
708 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A a move for increase in the Judge-strength because he is better suited to
know his requirements. [934-G-H; 935-A-B]

8.5. Since the fixation of judge-strength depends on a variety of
factors no uniform rule of general application can be evolved as the
situation in each High Court cannot be identical. Local factors differ and
B they cannot be wished away. It cannot be so simple as dividing the pending
backlog by the disposal norm fixed for each judge to arrive at the number
of judges required. [935-8-C]

8.6. In S.P. Gupta's case, there of the Judges were clearly of the
C opinion that the question of fixation of judge-strength under Article 216
was essentially an executive function and not justiciable in court. They held
that judiciary cannot issue a writ or a directive if the executive fails to
perform its duty under Article 216 and the remedy lies in the legislature.
However, another Judge felt it would not be 'proper' for the court to give
directions or issue a writ because appointing judges being a purely execu-
D tive 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
E absence of power and jurisdiction and refusal to exercise power on the
ground of propriety although the court has inherent jurisdiction. There-
fore, while three judges have ruled that the court lacked the power and
jurisdiction to issue a writ or directive the fourth judge has stated it would
not be 'proper' to exercise that power unless glaring circumstances exist.
However, fifth held the issue to be justiciable to the limited extent of
F directing the Union to review the judge-strength periodically on the basis
of workload. But fixation of judge-strength solely on the basis of workload
may not be correct because accumulation of workload may be for diverse
reason. [936-G-H; 937-A-D]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to.
G
8.7. The question of judicial manpower planning engaged the atten-
tion of the Law Commission of India. However, even the Law Commission,
which had the time and opportunity to undertake a technical analysis on
which a sound and durable formula could be evolved expressed its inability
H to do so and fell back on what it considered 'the next best thing' and 'a very
ADVOCATES ASSN. v. U.O.I. 709

poor substitute' for sound scientific analysis. A scientific method on the A
fixation of judge-strength is no easy task. If it as difficult for a body like the
Law Commission which had expert advice and time available to itself it
would be virtually impossible for the courts to undertake such an exercise.
Under the doctrine of judicial review 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
B
courts through common law and was exercised by the issuance of an ap-
propriate writ. What is generally reviewed is not the merits of the action but
the decision making process itself. 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 C
where the public authority has performed its public duty and the action is
questioned. But where the allegation is that the public authority is guilty of
non-performance of its public duty and it is shown that he has failed to
perform his constitutional or statutory duty, remedy available is through
court and a mandamus can be issued. In order, howev~r for a mandamus to D
issue to compel performance of a duty, it must clearly appear from the
language of the statute that a duty is imposed, the performance or non-per-
formance of which is not a matter of mere discretion. But even in cases
where the duty is discretionary, as distinct from a statutory obligation, a
limited mandamus could issue directing the public authority to exercise his
discretion within a reasonable time on sound legal principles and not E
merely on whim. Therefore, if the executive which is charged with a duty
under the Constitution to undertake periodical review of the judge-strength
falls in the performance of that duty, an order of mandamus can lie to
compel performance within a reasonable time. [937-E; 938-A-H; 939-A-B]
F
8.8. Therefore, in principle, it is not possible to say that the issue is
wholly outside the Court's purview and the remedy is merely to knock the
doors of legislature. Albeit, a proper foundation must be laid because the
Court will be extremely slow in exercising its extraordinary powers to issue
a writ of mandamus compelling performance of a certain duty unless it is
fully satisfied that the executive has totally omitted to pay attention to its G
constitutional obligation and needs to be awakened from its slumber. But
in the guise of exercising the power of judicial review <:are must be taken
to ensure, that the judiciary does not usurp this executive function to itself.
But no directive would be possible unless forced by glaring and compelling
circumstances which would be possible only if full, complete and correct H
710 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A assessment of the requisite strength of each High Court is available and
the court feels that the executive has been oblivious to the said facts. In
the absence of judicially manageable standards this may not be possible,
in which case the exercise of power would be in vain and normally a court
does not act in vain. Therefore, if there is a wilful and deliberate failure
on the part of the executive to perform its duty under Article 216, a writ
B can issue to 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 anr particular level. [939-B-F]

8.9. The need for periodical revision of the Judge-strength is essen-
C tially 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. [939-G-H]

8.10. Even though a time bound programme for dealing with the
proposals has been provided, delays continue on account of the
D functionaries involved in the process not abiding by the same. The process,
particularly in the case of appointments of the High Courts, it time
consuming as the 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
E 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 consultee must take
on the proposal having regard to the role he is expected to play and ensure
strict compliance at the executive level. This will help expedite the move-
ment of the proposal and if it is found to be unreasonably withheld, the
F functionary may be compelled through a writ to perform his public duty
within the time allowed by the court. If the functionaries involved in the
decision-making process realise their duty and obligation to society par-
ticularly to the consumers justice, the need to move the court will not arise.
(939-H, 940-A·C]
G 9.1. The Constitution is what the Judges say it is. That is because the
power to interpret the Constitution vests in the Judges. A heavy respon-
sibility lies on the Judges when they are called upon to interpret the Con-
stitution, the responsibility is all the more heavier when the provisions to
be construed refate to the powers of the judiciary. It is essential that
H complete objectivity is maintained while interpreting the constitutional ·
ADVOCATES ASSN. v. U.O.l. 711

provisions relating to the power of the judiciary vis-a-vis executive in the A
matter of appointments to the superior judiciary to avoid any feeling
amongst the other constitutional functionaries that there has been usurpa-
tion of power through the process of interpretation. This is not to say that
the judiciary should be unduly concerned about such criticism but merely
to emphasize that the responsibility is greater in such cases. [895-B-D]
B
9.2. Where the language of the Constitution is plain and the words
used are not ambiguous, care should be taken to avoid giving an impres-
sion that fancied ambignities have been conjured with a view to making it
possible to place a convenient construction on the provisions. If the words
are plain and unambiguous effect must be given to them, for that is the C
constituent body's intent, whether one likes it or not, and any seeming
attempt to depart therefrom under the guise of interpretation of imaginary
ambiguities would cast a serious doubt on the credibility and impartiality
of the judiciary. It would seem as if judges have departed from their sworn
duty; any such feeling would rudely shock peoples' confidence and shake
the very foundation on which the judicial edifice stands. The concern of D
the judiciary must be to faithfully interpret the Constitutional provisions
according to its true scope and intent because that alone can enhance
public confidence in judicial system. The one public interest which the
courts of law are properly entitled to treat as their concern is the standing
of an the degree of respect commanded by the judicial system. [895-E-H] E

Duport Steel Ltd. v. Sirs & Ors., [1980] 1 All England Reports 529,
referred to.

10.1. The concept of separation of powers is a well known fundamental
political maxim which many modern democracies have adopted. The Indian F
Constitution has not strictly adhered to that doctrine but it does provide for
distribution of powers to ensure that 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 G
system free from external as well as internal pressures. [896-D-E]

10.2. Under the constitutional scheme, the judiciary has been as-
signed to 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 H
712 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A 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 indeP,endent and impartial judiciary manned by persons of
sterling quality and character, undaunting courage and determination and
resolute impartiality and independence who would dispense justice without
fear or favour, ill-will or affection. Justice without fear or favour, ill-will
B or affection, is the cardinal creed of our Constitution and a solemn
assurance of every judge to the people of this great country. There can be
no two opinions that an independent and impartial judiciary is the most
essential characteristic of a free society. [896-E-H]

c Per Ku/dip Singh, J. Partly dissenting,

1. Articles 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 foe High Courts • collectively in
D consultation with each other. In the event of disagreement in the process
of consultation, the viewpoint of Judiciary being primal, has to be
preferred. [982-E]

2. The majority view in S.P. Gupta's case - giving primacy to the
E Central Government in the matter of appointment of Judges to the supe-
rior courts - does not lay down correct law and is over-ruled to that extent.
[982-F]
S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly over-ruled.

3. The expression 'president' in Articles 124(2) and 217(1) when read
F 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 accordance with
the interpretation given by this Court to Articles 124(2) and 217(1) of the
Constitution of India. [982-G-H]
G 4. The process of consultation under Article 124(2) means consult-
ation with the Chief Justice oflndia as head of the Judiciary. The opinion of
the Chief Justice of India is not his individual but formed collectively by a
body of men at the apex level of the Judiciary. Such collectivity shall consist
of the Chief Justice of India, two senior-most Judges of the Supreme Court
H and the senior Supreme Court Judge who comes from the State. [983-A-B]
ADVOCATES ASSN. v. U.O.I. 713

5. The process of appointment under Article 217(1) is to begin with A
the recommendation of the Chief Justice of the High Court. He must
ascertain the views of the two senior-most Judges of the High Court and
incorporate the same in his recommendation. The Chief Justice of India
while examining the recommendation must take into account the views of
two senior-most Judges of the Supreme Court and also the opinion of the
B
senior Judge conversant with the affairs of the concerned High Court.
[983-B-D]
6. The opinion of the Chief Justice of India shall be primal. No
appointment can be made by the President under Articles 124(2) and
217(1) of the Constitution unless it is in conformity with the opinion of the C
Chief Justice of India. [983-D-E]

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

8. The appointment to the Supreme Court shall be by 'selection on D
merit'. Inter-se seniority amongst Judges in their respective High Courts
has to be kept in view while considering the Judges for elevation to the
Supreme Court. The combined seniority on all India basis shall be relevant
in the process of consideration. The outweighing factor of merit would
justify the elevation of a junior Judge from the same High Court. [983-E-F]
E
9. The Executive may not appoint a recommendee of the judiciary if
considered unsuitable for good reasons based on the material available on
record and placed before - the Chief Justice of India. However, if after due
consideration the recommendation is reiterated by the Chief Justice of
India with the unanimous agreement of otlier judicial consultees then the
Executive is bound by the recommendation. [983-F-G]
F

10. A chief Justice/Judge may be transferred from one High Court
to another in public interest. A transferred Chief Justice/Judge can be
transferred again and the power is not exhausted after the first transfer.
The consent of the Chief Justice/Judge concerned is not required under G
the Constitution. [983-H, 984-A]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly over-ruled.

11. A proposal for transfer of a Chief Justice/Judge under Article
222 has to be initiated by the Chief Justice of India and the ultimate H
714 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A recommendation in that respect is binding on the Executive. (984-B]
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. [984-B-C]

B 13. I<'ixation 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. (984-C-D]

C S.P. Gupta v. Union of India, (1982) 2 S.C.R. 365, partly over-ruled.

14. Articles 124(~) and 217(1) of the Constitution only identify the
constitutional authorities required to be consulted for appointment of
Judges to the Supreme Court and the High Courts. These provisions do
not provide for the procedure to be followed in finalising the consultative
D process culminating in the issuance of a warrant of appointment by the
President of India. Neither Article 124 (2) nor Article 217 of the Constitu-
tion indicates that any of the constitutional authorities named therein has
primacy in the process of making appointments to the superior judiciary.
These are the types of gaps which are generally found in almost all the
E constitutions. They are filled by the conventions which develop with the
passage of time. (960-G-H; 961-A-B]

15. It is obvious from the facts and figures given by the Executive
itself that in actual practice the recommendations of the Chief Justice of
India have been invariably accepted. (965-G]
F
16. There are two primary reasons in support of the convention that
the primacy rests with the judiciary. There is no dispute that independence
of judiciary is the basic feature of the Constitution. The exclusion of the
final say of the executive in the matter of appointment of Judges is the only
G 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
H only available with the judiciary. It is difficult, rather impossible, to accept
ADVOCATES ASSN. v. U.O.I. 715

that all the consulting functionaries must be regarded as of coordinating A
authority because on various aspects like integrity, capacity, character,
merit, efficiency and fitness which are relevant for the purpose of judging
the suitability of a person, the executive authorities would be the least
informed and will have nothing to say. On the other hand, the Chief Justice
of the High Court and the Chief Justice of India, being best informed, are
well equipped to express their views and tender advice on the suitability of B
the person. All the constitutional functionaries being very high authorities
in their respective spheres there may not ordinarily be any conflict in their
assessment of a person regarding his suitability for appointment of a Judge
but in the event of any difference the advice tendered by the judiciary being
in the nature of an 'expert advice' has to be preferred. [967-F-H, 968-A-C] C

17. The convention, to the effect that the opinio' and the rer.ommen·
dation of the Chief Justice of India in, the matter of appointment of Judges
is binding on the executive, is firmly established and is to be read in
Articles 124(2) and 217(1) of the Constitution of India. [968-C-D]
D
18. The expression 'after consultation with', in Articles 124(2) and
217(1) of the Constitution, has three angles to its interpretation. It is
well-settled that the requirement of consultation is mandatory and there
is no dispute regarding the meaning of the word 'consultation'. [968·E·F]
E
19. In the entire range of presidential appointments, it is only in the
case of judicial offices - District Judges, High Court Judges and Supreme
Court Judges • that the appointments are ma1ie after consultation with the
constitutional functionaries named in the relevant provisions. [969-B·C]
F
20. No consultation is provided for with regard to the constitutional
offices - except judicial offices - yet no appointment to the offices of high
constitutional functionaries such as the Comptroller and Auditor General,
the Chief Election Commissioner and others, can be made by the executive
without going through some sort of consultative process to adjudge the
suitability or eligibility of the person concerned. The specific provisions G
for consultation with regard to the judicial offices under the Constitution,
clearly indicate that the said consultation is different in nature and
meaning than the consultation as ordinarily understood. The powers and
functioning of the three wings of the Government have been precisely
defined and demarcated under the Constitution. [969-E·G] H
716 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 21. Independence of Judiciary is the basic feature of the Constitu-
tion. The Judiciary is separate and the Executive has no concern with the
day to day functioning of the Judiciary. The person to be selected for
appointment to judicial offices are only those who are functioning within
the judicial sphere and are known to the Judges of the Superior Courts.
The executive can have no knowledge about their legal acumen and
B suitability for appointment to the high judicial offices. In the process of
consultation the expertise, to pick-up the right person for appointment, is
only with the Judiciary. The 'consultation', therefore, is between a layman
(the Executive) and a specialist (the Judiciary). Thus the advice of the
specialist has a binding effect. If the true purpose of consulting the
C judiciary is to enable the appointments to be made of persons not merely
qualified to be Judges, but also those who would be the most appropriate
to be appointed, then the said p•1rpose would be defeated if the appointing
authority is left free to take its 'own final' decision by ignoring the advice
of the judiciary. [969-G-H; 970-A-B]
'D 22. In the process of consultation, under the Constitution, the last
word must belong to the Chief Justice of India. [970-A; 971-G]

Shamsher Singh and Anr. v. State of Punjab, [1975) 1 S.C.R. 814;
Union of India v. S.C.H. Sheth and Anr., [1978) 1 S.C.R. 423 and R.
E Pushpam and Anr. v. The State of Madras, A.I.R. (1953) Madras 392,
referred to.

23. The link between consultation, the advice given as a result
thereof, and the ultimate appointment of the person about whom there is
consultation, is inextricable, making the entire process of appointment of
F Judges under the Constitution as an integrated one. The necessary conse-
quence is that the executive is not free to make an appointment which has
not been recommended by the Judiciary. (971-H; 972-A]

Colyar v. Wheelar, 75 S.W. (1089), referred to.
G 24. The framers of the Constitution placed a limitation on the power
of the Executive in the matter of appointment of Judges to the Supreme
Court and the High Courts. The requirement of prior 'consultation' with
the superior judiciary is a logical consequence of having an 'independent
judiciary' as a basic feature of the Constitution. If the Executive is left to
H ignore the advice tendered by the Chief Justice of India in the process of
ADVOCATES ASSN. v. U.O.I. 717

consultation, the very purpose and object of providing consultation with A
the Judiciary is defeated. There is, therefore, no doubt that the Executive
is bound by the advice/recommendation of the Chief Justice of India in the
process of consultation under Articles 124(2) and 217(1) of the Constitu-
tion. ,[972-F-G]

25. The constitutional-scheme does not give primacy to any in- B
dividual. Article 124(2) provides consultation with the Chief Justice of
India, Judges of the Supreme Court and Judges of the High Courts.
Likewise Article 217(1) talks of Chief Justice of India and the Chief Justice
of the High Court. Plurality of consultations has been clearly indicated by
the framers of the Constitution. On first reading one gets the impression C
as if the Judges of the Supreme Court and High Courts have not been
included in the process of consultation under Article 217(1) but on a closer
scrutiny of the constitutional scheme one finds that this was not the
intention of the framers of the Constitution. There is no justification,
whatsoever, for excluding the puisne Judges of the ~upreme Court and of D
the High Court from the 'consultee zone' under Article 217(1) of the
Constitution. [973-C-E]

26. A bare reading of Articles 124(2) and 217 (1) makes it clear that
the framers of the C_onstitution did not intend to leave the final word, in
the matter of appointment of Judges to the superior Courts, in the hands E
of any individual howsoever high he is placed in the constitutional hierar-
chy. Collective wisdom of the consultees is the sine qua non for such
appointments. [973-F-G]

27. Once it is held that the primacy lies with the Judiciary then it is the
Judiciary as a collectivity which has the primal say and not any individual, F
not even the Chief Justice of India. If the expression 'the Chief Justice of
India' is interpreted as a 'persona designata', then it would amount 'to allow
the Chief Justice practically veto upon the appointment of Judges' which the
framers of the Constitution never intended to do. Therefore, the expression
'the Chief Justice of India' and 'Chief Justice of the High Court' in Articles G
124(2) and 217(1) of the Constitution mean the said judicial functionaries
as representatives of their respective courts. [974-D-F]

28. While making recommendations for appointments to the
Supreme Court and the High Courts it is neither possible nor the require·
ment under the Constitution for the Chief Justice of India and Chief H
718 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A Justices of the High Courts to consult all the puisne Judges. It can
legitimately be assumed that there is a practice that the senior colleagues
are always consulted by the Chief Justice of India in the matter of appoint-
ment of Judges to the superior courts. (974-F-H]

Law Commission' 80th Report, referred to.
B
29. There are positive indications to show that the Chief Justice of
India has been consulting his senior col!eagues in the matter of appoint-
ment of Judges to the superior courts. Therefore, the opinion of the Chief
Justice of India in the process of consultation for appointments to the
C superior courts must be formed in consultation with two of his seniormost
colleagues. Apart from that, the Chief Justice of India must also consult
the seniormost Judge who comes from the same State (the State from
where the Candidate is being considered). This process of consultation
3hould also be followed while transferring any Judge/Chief Justice from
one State to another. (975-G-H; 976-A]
D
29.1. On the same parity, the opinion of the Chief Justice of the High
Court must be formed after consulting two seniormost Judges of the High
Court. [976-B]

E 30. The ascertainment of the opinion of the other Judges by the Chief
Justice of India and the Chief Justice of the High Court must be in writing
and from part of the final recommendation. (976-B-C]

31. Senior-most puisne Judges of the Supreme Court • barring on
two occasions • has been appointed to fill the office of the Chief Justice of
F India. There is, however, no known method of appointment to the said
office. No objective criteria has either been laid down or established by
convention. The appointment to the highest judicial office in the country
has been, more or less, at the discretion of the Executive. (976-C-D]

32. The only consistency in the said process, is the practice that the
G outgoing Chief Justice of India makes a recommendation, to the Executive,
naming his successor-in-office. There are instances where the recommen-
dee of the Chief Justice of India was not the seniormost puisne Judge of
the Supreme Court. The very fact, that the recommendation of the outgo-
ing Chief Justice of India has come to stay as a standing practice, goes to
H show that there is no existing convention of appointing the seniormosi
ADVOCATES ASSN. v. U.O.!. 719

puisne Judge as the Chief Justice of India. [976-D-F] A

33. The seniority rule stagnates the system due to lack of entt!rprise:
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 B
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 made 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 C
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 earlier occasion appointee from the Bar
was placed senior but on a later occasion the process was reversed. These
instance are not by way of criticism but only as a pointer with a view to D
straighten the exercise of discretion in the future. It may be that the High
Court Judges, lower in seniority, are preferred on the basis of their merit
in the process of selection. Even on that premises there is no justificalioll«
to apply 'seniority alone' rule to the Office of the Chief Justice of India.
Needless to say that the duties and responsibilities of the office of the Chief
Justice of India are much more onerous than that of a Judge of the E
Supreme Court. [976-F-H; 977-A-B]

34. The responsibility of toning-up the Judiciary in the country rests
on the shoulders of the Chief Justice of India. He is to make the appoint·
ments of Judges in the High Courts and in the Supreme Court. He has to F
select the Chief Justices of the High Courts. He is responsible for the
transfer of Chief Justices and Judges of the High Courts. Apart from
controlling the judicial and administrative functioning of the Supreme
Court, the responsibility for the satisfactory administration of justice all
over India lies on him. As the head of the Judiciary, he would lay down the
principles and practices to be followed in the administration of justice all G
over the country. It is thus obvious that with these manifold duties,
functions and responsibilities attached to the high and prestigious office
of the Chief Justice of India, the appointment to the said office must be by
selection based on objective standards and not by mere seniority. If proper
emphasis has to be given to initiative, dynamism and speedy action, the H
720 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A criterion of seniority which relies only on the quality of the person at the
time of his recruitment, will unhesitantingly have to be pushed to the back-
ground. [977-C-FJ

Law Commission, 14th Report, referred to.

B Sant Ram Shanna v. State of Rajasthan, [1968) 1 S.C.R. 111, referred
to.

35. In the matter of appointment of )udges to the superior courts,
primacy vests with the Judiciary. This being the present state oflaw, it is the
C Chief Justice of India and his consultees in the superior Judiciary who are
to select • in consultation with the executive • the next Chief Justice of India.
They have to lay down the standards of objectivity and rules of appraisal.
The 'seniority alone' rule can safely be given a good-bye and the selection of
the Chief Justice of India be made on the basis of merit alone. [980-A-8]

D '36: The issue regarding the appointment of Judges to the superior
courts, the incidental issues thereunder and all the connected questions
arising therefrom are wide open before the court. This Court is called upon
to upon to interpret the constitutional provisions regarding the function-
ing or an institution called judiciary. The work cannot be left half-way. The
E intentions of the framers of the Constitution must be found out, a complete
functional-scheme should be laid down to enable the institution to operate
smoothly. [980-E-F]

37. There can be no doubt that appointment to the Supreme Court
is by way of selection on merit and 'seniority alone' has never been and
F cannot be the basis. Even otherwise appointment to such a high office
under the Constitution cannot be on the sole criterion of seniority. Un-
doubtedly, the selection has to be on the basis of merit but the limited role
played by seniority in the said process cannot be ignored. The length of
service in the High Court or in the All India hierarchy is the only basis
G for bringing the Judges of the High Courts within the pale of considera-
tion. [980-G-H; 981-A]

38. The 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
H one. The merit shall always be the out-weighing factor in the selection of
ADVOCATES ASSN. v. U.O.I. 721

Judges to the Supreme Court of India. [981-C] A
39. So far as the interpretation of Article 222 of the Constitution
regarding transfer of a Judge from one High Court to another, the power
vested under Article 222 can only be exercised in 'public interest'. It is only
the Chief Justice of India who can examine the circumstances in a given
case and reach a conclusion as to whether it is in public interest to transfer B
or re-transfer a Judge from one Court to another. Concept of 'public
interest' when read in Article 222 makes it obligatory that the views of the
Chief Justice of India are accepted by the Executive. A transfer made in
public interest on the recommendation of the Chief Justice of India is not
justiciable. (981-D-F] c
40. Any proposals made by the Chief Justice of a State for increasing
the strength of the High Court, if it has concurrence of the Chief Justice
of India, should be accepted without demur or delay. (981-G]

Law Commission, 14th Report, dated September 26, (1958) Chapter D
6, Paper 8, referred to.

41. Apart from justiciability even if a proposal on the administrative
side is made by the Chief Justice of a State which has the concurrence of
the Chief Justice of India then the Executive is bound to accept the same. E
It is not necessary in that situation to get an adjudication from the court.
(981-H; 982-A]
42. 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 F
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 over-ruled its earlier decisions. The process of
trial and error, lessons of experience and force of better reasoning making
this Court wiser in its judicial functioning. In cases involving vital con·
stitutional issues this Court must feel free to bring its opinions into G
agreement with experience and with the facts newly ascertained. Stare
decisis has less relevance in constitutional cases where, save for constitu-
tional amendments, this Court is the only body able to make needed
changes. Re-examination and reconsideration are among the normal
processes of intelligent living. This Court has not refrained from recon- H
722 SUPREME COURT REPORTS (1993] SUPP.2S.C.R.

A sideration of a prior construction of the Constitution that has proved
'unsound in principle and unworkable in practice'. [945A-D]

43. The framers of the Constitution planted in India a living free
capable of growth and expansion within its natural limits. It lives and
breathes and is capable of growing to keep pace with the growth of the
B country and its people. Constitutional law cannot be static if it is to meet
the needs of men. New situations continually arise. Changes in conditions
may require a new-look at the existing legal concepts. It is not enough
merely to interpret the constitutional text. It must be interpreted so as to
advance the policy and purpose underlying its provisions. A purposeful
C meaning, which may have become necessary by passage of time and process
of experience, has to be given. The Courts must face the facts and meet the
needs and aspirations of the times. [945-E-F]

44. Interpretation of the Constitution is a continual process. The
institutions created thereunder, the concepts propounded by the framers
D and the words, which are beads in the constitutional-rosary, may keep on
changing their hue in the process of trial and error, with the passage of
time. [945-G]

45. When the words in the Constitution • defining institutions and
their functioning • were drafted, the framers could not have foreseen as to r
E what would be the development in the coming future. [945-H, 946-A]

R.C. Poudyal v. Union of India, (1933) 3 Scale 486, referred to.

46. The constitutional provisions cannot be cut down by technical
construction, rather it has to be given liberal and meaningful interpreta·
F tion. The ordi!lary rules and pre-sumptions, brought in aid to interpret the
statutes, cannot be made applicable while interpreting the provisions of the
Constitution. The functioning of the Apex-Judiciary during the last four
decades, the expanding horizon of, 'judicial review', the broader concept of
'independence of judiciary', practice and precedents in the matter of ap-
G pointment of judges which ripened into conventions and the role of the
Executive being the largest single litigant before the Courts are some of the
vital aspects which were not adverted to by this Court while interpreting
the constitutional provisions. The Court did not keep in view the well-es-
tablished rules of constitutional-interpretation. This Court is, therefore,
justified in re-opening and reconsidering the questions already determined
H by this Court in S.P. Gupta's case. [947-A-E]
ADVOCATES ASSN. v. U.0.1. 723

47. The Constitution of India is the fundamental law of the land. The A
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 or 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 B
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 C
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 may nullify unconstitutional acts of the Executive and of D
the elected representatives of the people assembled in the Parliament and
the State Legislatures. This conclusion does not suppose that the Judiciary
is superior to the Legislature. It only supposes that the power of the people
- embodied in the Constitution ·is superior to both. [947-F-H; 948-A·B]

48. The role of the Judiciary under the Constitution is a piOus trust E
reposed by the people. The Constitution and the dem~ratic • polity
thereunder shall not survive, the day Judiciary fails to justify the said
trust. If the Judiciary fails, the Constitution fails and the people might opt
for some other alternative. [948-B·C]
F
49. In view of the role of the Judiciary in the context of the Constitu-
tion it is fallacious to say that the Legislators alone are answerable to the
people regarding the functioning of the Judiciary. It is rather the Judiciary
which screens the functioning of the Executive and tli.e Legislatures
through the process of judicial review. This Court, therefore, was not
justified when, in S.P. Gupta's case, it gave primacy to the Executive on the G
ground that the Executive through the Legislators was answerable to the
peorle regarding the functioning of the Judiciary. [948-D-E]

50. Independence of Judiciary is the since qua non of democracy. So
long as the Judiciary remains truly distinct from both the Legislature and H

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

A the Executive, the general power of the people can never be endangered
from any quarters. The framers of the Constitution made it known in an
emphatic-voice that separation of Judiciary from Executive, which is the
life-line of 'independent Judiciary', is a basic feature of the Constitution.
[948-E-G]
B 51. To safeguard the 'will of the people • enshrined in the Constitu-
tion • it is necessary to keep the Judiciary truly distinct from both the
Legislature and Executive. This is what the framers of our Constitution
have done. [949-A]

52. The instant case must be considered in the light of the entire
C experience, and not merely in that of what was said by the framers of the
Constitution. While deciding the questions posed before it, the Court must
consider what is the judiciary today and not what it was 50 years back. The
Constitution has not only to be read in the light of contemporary cir·
cumstances and values, it has to be read in such a way that the circumstan-
D ces and values of the present generation are given expression in its
provisions. [p. 946-8-D]

53. No doubt, the independence of the Judiciary has been secured by
providing security of tenure and other conditions of service of individual
Juoges, but in recent times, with the expanded horizon of judicial review,
E the concept of judicial independence has achieved new heights. [949-A-B]

The Queen v. Beauregard, (1987) L.R.C. 180, referred to.

54. 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
F an independent judiciary as a institution. The Judiciary in India has to act
as an impartial umpire to resolve disputes between the Governments 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
G expanded the scope of judicial review by bringing in its ambit social,
economic and political justice. Keeping in view the expanding horizon of
judicial review it is the paramount need of the time that not only the
independence of an individual Judge is to be secured but the independence
of Judiciary as in institution has also to be achieved. [950-G-H; 951-AJ

H 55. It is illogical to say that there be an independent Judiciary when
ADVOCATES ASSN. v. U.0.1. 725

the power of appointment of Judges vests in the Executive. The inde- A
pendence of Judiciary is inextricable linked and connected with the con-
stitutional process of appointment of Judges of the higher Judiciary.
'Independence of Judiciary' is the basic feature of our Constitution. The
Framers of the Constitution could have never intended to give this power
to the Executive. Even otherwise the Governments - Central or the State -
are parties before the Courts in large number of cases. The Union Execu-
B
tive have vital interests in various important matters which come for
adjudication before the apex-Court. The Executive • in one from or the
other - is the largest single-litigant before the Courts. In this view of the
matter, the Judiciary being the mediator -between the people and the
Executive - the framers of the Constitution could not have left the final c
authority to appoint the Judges of the Supreme Court and of the High
Courts in the hands of the Executive. [951-B-D]

55.1 This Court in S.P. Gupta's case proceeded on the assumption
that the independence of Judiciary is the basic feature of the Constitution D
but failed to appreciate that the interpretation, it gave, was not in conform-
ity with the broader facets of the two concepts ·'independence of Judiciary'
and 'judicial review' - which are inter-linked. [951 -El

56. The Constitution of India is an elaborate document consisting of
395 Articles and ten Schedules. Despite that there are constitutional E
provisions - operative in various fields • which are nowhere to be found in
the written text of the Constitution. For instance, it is a fundamental
requirement of the Constitution that if the opposition obtain the majority
at the Polls, the Government must tender its resignation forthwith. Fun-
damental as it is, this does not form part of the written law of the F
Constitution. [951-F-H]

56.1. It is also a constitutional requirement that the person who is
appointed Prime Minister by the President and who is the effective Head
of the Government should have the support of the House of People. The
other Ministers who are appointed by the President on the advice of the G
Prime Minister must continuously have the confidence of the House of
People individually and collectively. The powers of the President are
exercised by him on the advice of the Prime Minister and the Council of
Ministers which means that the said powers are effectively exercised by the
Council of Ministers headed by the Prime Minister. None of these and H
726 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A many other essential rules of the Constitution are found in the Constitu-
tion of India as framed by the Constituent Assembly. [951-H; 952-A-B]

57. Two sets of principles, make up the rules of constitutional law.
One set of rules is contained in the written constitution of a country and
the other set is referred to as the 'conventions of the Constitution'. Con-
B ventions are a means of bringing about constitutional development without
formal changes in the law. [952-E]

K.C. Wheare : "The State of Westminster and Dominion States", 4th
Edn., referred to.
c 58. The conventions grow up, around and upon principles of the
written Constitutions. Necessary cunventional rules spring up to regulate
the working of the various parts of the Constitution, their relation to one
and other and to the subject. (952-G]

D Sir W. Ivor Jennings: "Law and the Constitution'~ 5th Edn., referred
to.

59. The conventions enable a rigid legal framework • laws tend to be
rigid • to be kept up with changing social needs and changing political
ideas. The conventions enable the men, who govern, to work the machines.
E (953-EJ
Dicey : "Introduction to the Study of the Law of the Constitution",
referred to.

60. The written Constitutions cannot provide for every eventuality.
p Constitutional institutions are often created by the provisions which are
generally worded. Such provisions are interpreted with the help of conven-
tions 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
framework. Whatever the nature of the Constitution, a great deal may be
G left unsaid in legal rules allowing enormous discretion to the constitutional
functionaries. Conventions regulate the exercise of that discretion. A power
which, juridically, is conferred upon a person or body of persons may be
transferred, guided or canalised by the operation of the conventional rule.
(954-A-B]
H K.C. Wheare: 'Modem Constitution', 1967 Edition, referred to.
ADVOCATES ASSN. v. U.O.I. 727

61. The primary role of conventions is to regulate the exercise of A
discretion - presumably to guard against the irresponsible abuse of
powers. [954-D)

R. v. H.M. Treasury, exp. Smedley, [1985) Q.B. 657, referred to.

Colin R. Munro : "Studies in Constitutional Law'~ 1987 Edn., referred B
to.

62. EYery act by a constitutional authority is a 'precedent' in the
sense of an example which may or may not be followed in subsequent
similar cases, but a long series of precedents all pointing in the same C
direction is very good evidence of a convention. [956-A-B)

Re Amendment of the Constitution of Canada, [1981) 125 D.L.R.
(3d) 1, referred to.

Sir W. Ivor Jennings : "The Law and the Constitution'~ 5th Edn. D
[1959), Dicey: "Cases and Materials on Constitutional and Administrative
Law" 1966. Edn. and Prof J.D.B. Mitchell, Constitutional Law, 2nd Edn.
1968; referred to.

63. 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 E
cannot later become law. When customary rules are recognised and en-
forced by courts as law, there is no reason why a convention cannot be
crystallised into a law and become enforceable. Conventions can become
law also by judicial recognition. [958-D-E]

K.C. Wheare: 'Modem Constitution', 1966 Edition, referred to. F

64. 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 submission. But once it is established in the court of law that a
particular convention exists and the constitutional functionaries are fol· G
lowing the same as a binding precedent then there is no justification to
deny such a convention the status of law. Courts have recognised the
existence of conventions and have relied upon them as an aid to statutory
interpretation. [958-E-G)

Ryder v. Foley, [1906) 4 C.L.R. 422, Commercial Cable Company v. H
7'213 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Government of Newfoundland, [1916) A.C. 610; British Coal Corporation v.
The King, [1935) A.C. 500; Robinson v. Minister of Town and Country
Planning, (1947) K.I. 702; Liversidge v.Anderson, [1942) A.C. 206; Copyright
Owners Reproduction Society Ltd. v. E.M.l. (Australia) Pvt. Ltd., [1958) 100
CL.R. 597; Adegbenro v. Akintola, [1963) A.C. 614; Attorney-General v.
B Jonathan Cape Ltd., [1976) Q.B. 752; R. v. Secretary of State for Home
Department, Ex. p. Hosenball, [1977) 1 W.L.R. 766 and Re Amendment of
the Constitution of Canada, [1981) 123 DL.R. (3rd) 1; referred to.

65. There is no distinction between the 'constitutional law' and an
established 'constitutional convention' and both are binding in the field of
C their operation. Once it is established to the satisfaction of the court that
a particular convention exists and is operating then the convention be-
comes a part of the 'constitutional law' of the land can be enforced in the
like manner. [959-C-D]

U.N.R. Rao v. Smt. Indira Gandhi, [1971) Supp. S.C.R. 46 and
D ShamsherSingh &Anr. v. State of Punjab, [1975) 1S.C.R.814, referred to.
66. The question whether an established constitutional convention
can be read in Articles 124(2) and 217(1) of the Constitution of India to the
effect that in the matter of appointment of the Judges of the High Courts
E and Supreme Court, the opinion of the Judiciary expressed through the
Chief Justice of India is primal and binding, is to be considered on the basis
of three tests, viz., (a) what are the precedents; (b) did the actors in the
precedents believe that they were bound by a rule; and (c) was there reason
for the rule, for the existence of a convention. [960-E-G]

F Per Punchhi, J. (Dissenting)

1.1. 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 holds, unlike
them, the responsibility of fixing rosters, knitting benches, allocation of
G 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 either in the
context or in the spirit of Article 124. In comparison the matter of appoint-
ment of Judges of the Supreme Court is his constitutional function.
H [995-F-H; 996-A]
ADVOCATES ASSN. v. U.O.I. 729

1.2. The Chief Justice of India on the plain language of Article 124(2) A
is always singularly to be consulted by the President of India before
making an appointment, whereas, in contrast, his puisne judges are
separately referred to be barely falling in the consultation zone and that
too at the option of the President. Obtaining of their opinion is not
compulsory. The option resting with the President is of course purely
discretionary. The President may overlook all the Judges of the Supreme
B
Court and all the Judges of the High Court and consult instead a High
Court Judge junior most in rank from a remote corner of the country. The
only limitation set for the purpose is that consultation by the President
can only be sought from within the members of the higher judiciary so
earmarked. This too demonstrates in contrast the singular position of the c
Chief Justice of India. [996-A-C]

1.3. The Chief Justice oflndia is one of the Judges in Supreme Court
in the judicial sense. But he is the Chief Justice of India throughout the
territory of India which encompasses various High Courts and other courts D
in the hierarchy. No functioning High Court Judge, and others to be ap-
pointed later, could have and can escape the touch gf his approving wand.
In every High Court appointment an effective role to play. High court
appointments advisedly are not left to be just a local affair. [996-C-D]

1.4. The Constitution has put the Chief Justice of India at a primal E
position of certification in letting enter by his approval persons to the
judicial family of which he is the paterfamilias. Correspondingly to that
right is his duty to oversee performance of Judges in the High Courts as
otherwise the power in his hand towards transfer of judges from one High
Court to another under Article 222 could meaningfully be not employed. F
In that sense the Chief Justice of India is administratively knit to the
judiciary in the country but this knitting is primarily his and not that of
the Supreme Court. The majority opinion, concludes to obliterate this
distinction. It follows a path leading to a destination unknown to the
Constitution. No doubt Rule of Law is a basic feature of the Constitution
permeating the whole constitutional fabric and Independence of the G
judiciary is an essential attribute of Rule of Law, and is part of the part
of the basic structure of the Constitution. The law whatever be its length
or sweep, has some end, wherefrom if human discretion holds the field
then that would lead either to justice or injustice, reasonableness or
arbitrariness. Now this scepticism, cannot be applicable in all situations; H,
730 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A least 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 descretion) should therefore be reduced or wiped
out by laying down some guidelines so as to put those guidelines in the
B realm of law so that they become enforceable as law. As a re~ult 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 a body of men introducing a new element of plurality
C 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 said Article be read symbolic of
D his representing the judiciary as a whole. [996-E-H & 997-A-D]

1.5. It is also suggested that in actual practice he must be one in a
body of men, i.e., he with two of his colleagues in order of seniority, and
collectively as an oligarchy, recommending appointment of Judges to the
Supreme Court, and likewise in a body of more than those two, in the
E matter of appointment of Chief Justices and other Judges of the High
Court. This is the barter which the Chief Justice of India must accept to
get back from the Executive his lost primacy. He must forever muzzle his
singular voice. The individual voice of the Chief Justice of India shall just
be at par with the voices of the afore-referred to men composing that body.
F All such voices, termed as collective wisdom, in writing would be sent to
the Central Government recommending appointment of judges to the
higher judiciary. By this collectivity, concievably not always unanimous,
assumption is made that it could have the loudest voic~ reverberating. And
suck voice would have "greater weight" as compared to other constitutional
functionaries who would have "due weight". [997-D-FJ
G
1.6. Further the Executive, time bound, would be required to react
and on its failure to do so effectively, it would be obligatory on its part to
advise the President on the action proposed by this oligargic group. Lastly
it is suggested that since appointments routed through this method would
H assumptively be with the approval of the judiciary as a class, there shall
ADVOCATES ASSN. v. U.0.I. 731

I.hen be no occasion or scope of judicial review over any appointment A
except to the limited extent of lack of qualifications of the appointee. And
it is by this method, it is said, that the right people would be inducted in
the judiciary. Nothing, could be more violating in letter and spirit of the
language and scheme of the Constitution, disturbing equilibrium on which
it rests, and a hard hit on its basic structure and basic features especially B
in the denial of judicial review. And on such interpretation the President
henceforth cannot solicit consultation with any Judge in the country under
Article 124(2) of ti1e Constitution, for the voice of all Judges now is to be
found in the symbolized Chief Justice. Therefore, this cannot be agreed to.
There would be a storm of conflict brewing in its application. If by this
method it is thought to prevent the Executive element likely to enter, C
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 who brew conflict, men who are not historians of the past and
prophets of thl future, but believe in short term existences. As rightly said D
by 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. [997-G-H; 998-A-E]

1.7. The role of the Chief Justice of India in the matter of appoint- E
ments to the Judges of the Supreme Court is unique, singular and primal,
but participatory vis-a-vis the Executive on a level of togetherness and
mutuality, and neither he nor the J<:xecutive can push through an appoint-
ment in derogation of the wishes of the other. [1003-E-F]
F
1.8. The roles of the Chief Justice 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 disagree-
ment 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. [1003-F-G] G

1.9. 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 consolation
envi~aged under Article 222 of the Constitution is used in a shrunk form H
732 SUPREME COURT REPORTS [1993] SUPP. 2 S C.R.

A and more as a courtesy, the subject being one relating to the in working
of the judiciary (1003-H, 1004-A)

S.P. Gupta v. Union of India, [1982) 2 S.C.R. 365; and explained.

2.1. To assign a role to the Chief Justice of India, in the whole
B conspectus of the Constitution, as symbolic in character and to his being
a mere spokesman representing the supposed views of entire judiciary
would virtually tantamount to re-writing the Constitution, which is not
warranted. It would not be correct to create and vest powers in the hands
of the oligarchy representing the judiciary as whole by adding words to the
C Constitution by interpretative exercise so as to silence the singular voice
of the Chief Justice of India for ever. (1004-8-C)

2.2. One 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
D 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 frameword 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
Constitution. Greatest problems of the time are also not solved merely by
E interpretations made to suit the occasions. There are other legitimate
modes available in passing through the tunnel of words employed by the
Constitution. Majorities to byepass the words also to not the answer.
[993-C-E]
3.1. Primacy of the Chief Justice of India could have two facets; one,
F institutional but personal to the Chief Justice of India and the other con-
stitutional. Under the Constitution there is 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
G oflndia. Under sub-Article (2) of Article 124, as also under Article 217, the
Chief Justice of India has been assigned a compulsive consultative role in
the matter of appointment of Judges of the Supreme Court as also the Cbief
Justices and judges of the High Courts. [987-G-H; 989-C-D]

3.2. The in-built retention of rank and precedence of the Chief Justice
H in the institutional sense before the other Judges of the same court, be it
ADVOCATES ASSN. 1-. U.O.I. 733

a High Court of the State or the Supreme Court of India in the post-Con- A
stitution period, is an accepted hierarchical norm and hence the source of
his Institutional primacy. [989-F-G]

3.3. Not only is the word 'primacy' inextricably linked up with the
words 'rank' and precedence' but conceptually they all are of the same
family and breed, block and substance. The Chief Justice of India or the
B
Chief Justice of a High Court, as the case may be, is known to be primus
inter-partes i.e. first among equals while functioning judicially, but in
matters other than judicial enjoys a unique position of status, rank and
precedence by virtue of his office. This distinction is first borne in mind
and then constitutionally kept alive, whenever he is referred to singularly c
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. [990-B-C]

4.1. Insofar as the President is concerned, the subject of appointment D
of Judges of the higher lot is left between the Chief Justice of India and
the Prime Minister (Law Minister including) and he would 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 E
consultor, ordinarily. [992-H & 993-A-B]

4.2. When the Constitution was adopted and from its actual working
in the years thereafter, the position which emerges is that the consultee
has remained an effective consultee and no one out of the two has the F
primal power to silence the other. The two high effectual constitutional
dignitaries, such as the Prime Minister of India aided by the Law Minister,
if any, and the Chief Justice of India are expected to interact in a spirit of
mutuality and accommodation, and not act at cross purposes. Plurality
thu·s lies in working together, minimising the areas of conflict, ironing out
differences, choosing the appropriate time for interaction, shelving con- G
troversial proposals and not letting them block other appointments which
can by mutual discussion go through to serve the people; the aim being
that the Supreme Court and the High Courts shall not remain starved of
Judges. The view that the two functionaries must keep distances from each
other is counter productive. The relationship between the two needs to be H
734 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A maintained with more consideration. [994-A; 995-A, E]

4.3. In the post S.P. Gupta's period, the Central Government i.e. the
Law Minister and the Prime Minister were found to be in a dominant
position and could even appoint a Judge in the higher judiciary despite
his being disapproved or not recommended by the Chief Justice of India
B and likewise by the Chief Justice of a State High Court. Exception perhaps
could be made only when the Chief Justice was not emphatic of his
disapproval and was non-committed. ~is stance could in certain cir·
cumstances be then treated, as implied consent. These would of course be
rare cases. Now in place of the aforesaid two executive heads come in
c dominant position, the first and the second puisne, even when disagreeing
with the Chief Justice of India. A similar position would emerge when
appointing a Chief Justice or a Judge of the High Court. Thus the position
of the institution of the Chief Justice being singular and unique in char·
acter under the Constitution is not capable of being disturbed. It escaped
S.P. Gupta's case, though in a truncated form, and not to have become
D totally extinct, as is being done now, correction was required in that regard
in S.P. Gupta's case, but not effacement. [998-F-H, 999-A-B]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to and
explained.
E
5. The suggestion that our judiciary is traditionally apolitical and it
needs to secure a non-political combination on having a larger say in the
appointment of members of the higher judiciary is perhaps overly stated.
There is nothing to feel shy in stating that the traditional role of the court
of remaining apolitical is a thought of the past. The higher judiciary in
F
this country was never so full with political problems as of today. Their
solutions could never to entirely non-political. [999-C, F, 1000-B]

6.1. The plain language employed in Articles 124 and 217 suggests
that the proposal for an appointment must emanate from the President of
G India. Conventionally, it is just the reverse and for sound practical
reasons. The proposal now emanates, and should keep emanating, from
the Chief Justice of India, in so far as the Supreme Court appointments
are concerned, and from the Chief Justice of the High Court, in so far as
the High Court appointments are concerned, to which the Chief Justice of
H India is a very important consultee. To have developed such convention is
ADVOCATES ASSN. v. U.O.I. 735

pure and sound logic. [1000-B, DJ A
6.2. In view of the qualifications for appointments of judges to the
Supreme Court, as well as to the High Court, as laid in the Constitution,
strong common sense leaves the act of proposing a name by the Chief
Justice of the Court concerned, he being the longest tenured and having B
gained the longest experience in men. Besides knowing about the legal
acumen of the person under consideration, the Chief Justice has oppor-
tunity to notice his behaviour and court-craft and the fairness with which
he deals with the court, client and opposing counsel. The Chief Justice has
various means to know about the general reputation of the person under
consideration. Yet the search, traditionally is to look for a gentleman, a C
man of honesty and integrity for the discovery of which the Chief Justice
may not be fully equipped. These attributes are reflected to some extent in
the formal atmosphere of the court but most of them outside the court.
The proposal cannot, and should not, fructify on the mere asking of the
Chief Justice because his recommendation in the very nature is incomplete D
and inchoate unless and until the twain of information about the charac-
ter, honesty integrity gentlemanliness, and a host of other attributes are
supplied by the Executiye. 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. [1000-D-H, 1001-A-B] E

6.3. 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. lloth need to entwine to F
help emerging appropriate acceptable appointments both to the Chief
Justice of India and the Executive. A division, artificial on the face of it,
cannot tilt in favour of the Chief Justice by assigning to him more
knowledgability of a proposed appointment than other functionaries and
on that basis a primacy, leaving the opinion of others for due regard. The G
whole personality of the person under considerations is to underg.; the test
of acceptability at a joint level. Knowledge of law alone is not a tilting
factor. [1001-C-F]

6.4. It is left exclusively to the Chief Justice of the Supreme Court or H
736 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A the High Court, as the case may be, to consult any number of Judges on
the particular proposal. It is equally within his right not to consult anyone.
This is his constitutional primacy and prerogative. (1001-E]

6.5. There is clearly no principle of consideration which would justify
reading into the plain and simple words of Articles 124(2) any additional
B words to suggest that the Chief Justice of India as described therein is only
in a symbolic sense, representing the judiciary. It cannot be said that the
Chief Justice heads a monastic order, entry of which is regulated by the
Order as a class, and its head merely a spokesman. No one can denude
him of the role to which he is constitutionally entitled, Equally, it is
c difficult to agree to a construction of the provision that the proposal
initiated by him, or related to a High Court appointment, which passes
through him, when approved by the executive goes as affirmance of his
primacy. It would be better to go by the scriptural thought that when one
says and, the other agrees, both be known as wise. [1001-G-H; 1002-A-B]
D
7.1. With regard to the role of the Chief Justice of India vis-a-vis the
Chief Justice of the High Court in making appointments to the High Court,
their views should coalesce, because on that depends discipline in the
judicial family. The appointments to the High Court are not a local affair
E or a State subject. At times local affairs may appear messed up and
complicated which cannot be conducive to the emergence of right appoint-
ments. The Chief Justice of India has an overall 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 transfer of Judges from one
High Court to another. Those transfers need to have a basis. Unless he is
F 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 heirarchical sense, the voice of the Chief
Justice of India to the proposal, should there be a difference, unexpected
though, be the determining factor. [1002-C-E]
G
7.2. 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
H should be allowed to take the lead. For it cannot be ever said in the
ADVOCATES ASSN. v. U.O.I. 737

constitutional scheme that there are as many judiciaries in the country as A
of the High Courts; the Supreme Court being just another. As a wing of
the political set up, the judiciary is one whole knitted hierarchically under
the Constitution. (1002-F-Gl

8.1. Transfer of Judges from one High Court to another is almost B
the judiciary's internal affair. The role of the Chief Justice of India in that
regard is primal in nature because this being a topic within the judicial
family. The executive cannot have an equal say in the matter. Here the word
'consultation' would shrink in a mini form. Should the Executive have an
equal role and be in divergence of many a proposal, germs of indiscipline
would grow in the judiciary. For instance, in the case of a recommendation C
made by a Chief Justice of the High Court where the Chief Justice of India
is in dis-agreement, and the Executive preferring the view of the Chief
Justice of the High Court makes the appointment and the Judge is recom-
mended to be transferred by the Chief Justice of India to another High
Court. In the first place, preferring the opinion of the Chief Justice of the D
High Court over and above that of the Chief Justice of India erodes the
primacy of the Chief Justice of India based on his status, rank and
precedence constitutionally noticed, and in the second place recommend~-
tion of transfer of that Judge to another High Court, makes the proposal
suspect. This obviously is a breeding ground of indiscipline.
[1002-H, 1003-A-C] E
8.2. The role of the Chief Justice of India in the matter of appoint-
ment of Judges of the High Court and their transferability are connected
matters which cannot be divorced on the mere fact Qf the possibility of
their separate happening. The role to the Chief Justice of India in the twin
F
subject has to be viewed from the self same angle, i.e. to subserve the
independence of judiciary in the interest of the India people. (1003-D]

9. Judicial review on the subject cannot be said to hi! denied on the
supposition that it would be the judiciary's act, as that is against the basic
structure of the Constitution. [1004-C] G

10. Since neither b1:fore the referring bench nor in the pleading was
any point raised as to the innovation and application of service
jurisprudence to the induction into the higher judiciary, or to the concept
of reasonable expectations, it is not necessary to even touch these ques- H
738 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A tions. Nothing ever was projected on these subjects either. The benefit of
a discussion inter-se on which the desirability of going into these aspects
may have been gone into was not available. A lot can be said against the
views expressed without alerting counsel appearing and others concerned
but for the present the comment be kept reserved, and such opinion is
B obiter. Consideration on these points was wholly unnecessary on the rigid
terms of the reference. [1004-E-G]

ORIGINAL JURISDICTION : Writ Petition No. 1303 of 1987.

WITH
c Writ Petition (Civil) No. 156 of 1993.

Under Article 32 of the Constitution of India.

Milan K. Banerjee, Attorney General, S.C. Roy, Attorney General
D Kapil Sibal, F.S. Nariman, Ram Jethmalani, P.N. Lekhi, R.K. Garg, K.
Parasaran, Shanti Bhushan, P.P. Rao, Ravi Kiran Jain, V.M. Tarkunde,
Vinod Bobde, Ms. Indra Jai Singh, B. Dutta, K.N. Bhat, S.P. Gupt~, P.L.
Dubey, S.C. Toy, B.V. Acharya, Vepa Sarthi, P.M. Raval, P.H. Parekh,
Mukul Mudgal, Raju Ramachandran, Ranjit Kumar, S.C. Sharma, M.S.
E Ganesh, S.P. Gupta, Sunil Gupta, K.J. John, Surya Kant, Naresh K. Shar-
ma, R. Sasiprabhu, A. Jayaramm P.R. Seetharaman, A.S. Srivastava, R.B.
Misra, Mrs. Hemantikawahi, Veerappa, K.H. Nobin Singh, Kailash Vasdev,
Ms. Alpana Poddar, Ashok K. Srivastava, Satish K. Agnihotri, A.K. Singh,
Aman Lekhi, Lokesh Kumar, Ashok Kashyap, Rakesh Luthra, L.R. Singh,
F .Amal Dutta, Dalip Sinha, J.R. Sinha, T.V.S.N. Chari, H.K. Puri, B.D.
Sharma G. Prabhakar, Praveen Chaudhari, B.B. Singh, Anip Sachthey,
Anip Sachthey, Ms. Meenakshi Arora, B.R. Jad, R. Mohan, S.M. Jadhav,
A.S. Bhasme, R.K. Mehta, G.K. Bansal, Aruneshwar Gupta, Ashok
Mathur, S.K. Nandi, Ms. Indu Malhotra, Ms. Beena Gupta, Krishna Mur-
thy swami, P.K. Manohar, Ms. Kamini Jaiswal, Ms. S. Janani, Gopal Singh, [
G D.N. Mukherjee, M.K. Garg, Ashok Srivastava, Prashant Bhushan, Mrs.
M. Karanjawala, J.M. Khanna, Subhash Sharma, A. Subba Rao, Ms. A.
Subhashini, P.S. Champaneri, J.M. Sharma, Suman Bhardwaj, Shashi
Nigambam, V.B. Misra, Ms. Abha Jain, P.S. Champanan, R. Nariman, A.N.
Dawn, Ms. Suchitra Saha, P.L. Dubey, Neeraj Datta, N.K. Sharma and S.K.
H Kulkarni for the appearing parties.
ADVOCATES ASSN. v. U.O.I. [VERMA,J.] 739

The Judgment of the Court were delivered by A
J.S. VERMA, J. (for himself and on behalf of Yogeshwar Dayal, G.N.
Ray, Dr. A. S. Anand & S.P. Bharncha, fl.) :

By and Order dated October 26, 1990 passed in Subhash Shanna and
Others v. Union of India, [1990) 2 S.C.R. 433 and the matters connected B
therewith, the papers of Writ petition No. 1303 of 1987 - Supreme Court
Advocates-on-Record Association & Anr. v. Union Of India, were directed
to be placed before the learned Chief Justice of India for constituting a
Bench of nine Judges to examine the two question referred therein, namely,
the position of the Chief Justice of India with reference to primacy, and C
justiciability of fixation of Judge- strength. That Order was made since the
referring Bench was of the opinion, that the correctness of the majority
view in S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982)
2 S.C.R. 365, required reconsideration by a larger Bench. This is how these
questions arise for decision by this Bench.
D
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: E
(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
F
(2) Justiciability of these matters, including the matter of fixation
of the Judge-strength in the High Courts.

Able assistance was afforded to us by several eminent counsel who
appeared to canvass the different viewpoints in orde! to focus attention on
every aspect of these questions. Sarvashri F.S. Nariman, Kapil Sibal, Ram G
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 i11 the matter of appointments to the Supreme Court and the High
Courts and transfers of the High Court Judges and Chief Justices has
primacy, with the executive having the role of merely making the appoint- H
740 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A ments and transfers in accordance with the opinion of the Chief Justice of
India. This, in substance, was the common theme of their address. How-
ever, there were minor variations between them relating to the extent of
exclusion of the executive's role. One point of view canvassed was that the
primacy of the Chief Justice of India is in all matters; another point of view
B was that in an exceptional case the executive may not make an appointment
recommended by the Chief Justice of India if, for strong reasons disclosed
to the Chief Justice of India, that appointment was considered to be
unsuitable. It was also contended by them that the matter of fixation of the
Judge-strength under Article 216 is justiciable, there being some difference
between them about the extent to which it is justiciable. Shri S.P. Gupta,
C petitioner-in-person in Writ Petition No. 156 of 1993, also argued that the
majority opinion in S.P. Gupta v. Union of India, (1982) 2 S.C.R. 365 is
incorrect.

Shri K Parasaran by and large argued in favour of affirmance of the
D majority opinion in S.P. Gupta, contending that there is no occasion to take
a different view, more so when, in spite of that decision, in the actual
working, the Government of India gives the greatest weight to the opinion
of the Chief Justice of India; and, except on rare occasions, appointments
have been made only in accordance with tile opinion of the Chief Justice
of India. Shri Parasaran submitted that the Constituent Assembly Debates
E show that the plea for primacy of Chief Justice of India, or the requirement
of his ,concurrence in making the appointment, was considered and ex-
pressly discarded while drafting the Constitution. He also submitted that
the several provisions in the Constitution relating to the oath of office; fixity
of tenure; restriction against alteration of conditions of service to the
detriment of the judges after their appointment; salaries and pensions
F being charged on the Consolidated Fund; restriction on discussion of their
conduct in the legislature; power to punish for contempt; and open
hearing in courts are sufficient safeguards for the independence of the
judiciary and therefore, no further exclusion of the executive's role in the
- process of appointment of Judges is contemplated.

G
The learned Attorney General, in substance, canvassed for accep-
tance 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
H names of those it considers suitable, to the Chief Justice, but initiation of
ADVOCATES ASSN. v. U.O.I. [VERMA, J.] 741

the proposal must be by the Chief Justice and the opinions of the Chief A
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 recom-
mended. He also submitted that the opinion of the judiciary binds the
executive even in the matter of fixation of Judge-strength under Article 216, B
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. Gupta is correct. To the same effect was the submission of
the learned Advocate General of Madhya Pradesh.

Shri R.K. Garg submitted that the opinion of Pathak, J. (as the then C
was) in S.P. Gupta is preferable, that there is primacy of the role of the
Chief Justice of India in the process of appointment, which is an inter-
grated process. The submissions of some others who addressed us fall
within the broad parameters of the rival contentions.
D
It is unnecessary for us the burden this opinion with the full historical
background in which these questions arise for decision, since the same is
stated at length in S.P. Gupta and, along with the subsequent develop-
ments, mentioned in the referring Order. However, for the sake of con-
venience, a brief resume of the background in which these questions have
to be considered, may be given. E

BACKGROUND

These questions have to be considered in the context of the inde-
pendence of the judiciary, as a part of the basic structure of the Constitu-
tion, to secure the 'rule of law' essential for the preservation of the F
democratic system. the broad scheme of separation cf powers adopted in
the Constitution, together with the directive principle of 'separation of
judiciary from executive' even at the lowest strata, provide some insight to
the true meaning of the relevant provisions in the Constitution relating to
the composition of the judiciary. The construction of those provisions must G
~ccord with these fundamental concepts in the constitutional scheme to
preserve the vital and promote the growth essential for retaining the
Constitution as a vibrant organism.

It is useful to refer to certain observations by a Constitution Bench
in Sub-committee on Judicial Accountability v. Union of India & Ors., (1991] H
742 SUPREME COURT REPORTS (1993] SUPP. 2 S.CR.

A 4 sec 699, in para 16, as under :-

"....... it is necessary to take a conspectus of the constitutional
provisions concerning the judiciary and its independence. In inter-
preting the constitutional provisions in this area the Court should
adopt a construction which strengthens the foundational features
B and the basic structure of the Constitution. Rule of law is a basic
feature of the Constitution which permeates the whole of the
constitutional fabric and is an integral part of the constitutional
structure. Independence of the j~diciary is an essential attribute
of rule of law."
c In S.P. Gupta the concept of independence 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 fibre, unbending before
D 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
E community. It is this principle of independence of the judiciary
which we must keep in mind while interpreting the relevant
provisions of the Constitution."

(pages 537-38)
F 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
G
judiciary. An Independent and impartial judiciary supplies the reason
for the judicial institution, it also gives character and content to the
constitutional milieu.

.............. In fashioning of the provisions relating to the judiciary,
H the greatest importance was attached to securing the independence·
ADVOCATES ASSN. v. U.O.l. [VERMA, J.) 743

of the judges, and throughout the Constituent Assembly debates the A
most vigorous emphasis was laid 011 that principle. ....... the framers
of the Constitution took great pains to ensure that an even better and
more effective judicial structure was incorporated in the Constitution,.
one which would meet the highest expectations of judicial inde-
pendence. .......... "
B
(emphasis supplied}
(pages 1155-56}

This perception of the concept of independence of the judiciary is in
harmony with the 'Basic Principles on the independence ofthe Judiciary' C
forming a part of the universal 'Human Rights in the Administration of
Justice' envisaged by the. Seventh United Nations Congress at Milan and
endorsed by the U.N. General Assembly in 1985, which provide inter alia
as under:

"10. Persons selected for judicial office shall be individuals of D
integrity and ability with appropriate training or qualifications in
law. Any method of judicial selection shall safeguard against judicial
appointments for improper motives. ........ "

xxx xxx xxx
13. Promotion of judges, wherever such a system exists, should be
E
based on objective factors, in particular ability, integrity and ex-
. perience."

(emphasis supplied}
F
(Human rights - A Compilation of International Instruments
(1988) at p. 267.)

Mathew, J. in Smt. Indira Nehru Gandhi v. Shri Raj Narain and
Another, [1975] Supp. SCC 1, after indicating that the rule of law is a part
of the basic structure of the Constitution, apart of the basic structure of G
the Constitution, apart from democracy, as held in Kesavananda Bharati,
[1973) Supp. Supp. S.C.R. 1, proceeded to succinctly summarise the
modern concept of the rule of law, as under :

"............ 'Rule of law' is ail expression to give reality to some-
thing which is not readily expressible. That is why Sir Ivor Jennings H
744 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A said that it is an unruly horse .......... Dicey's formulation of the rule
of law, namely.

"the absolute supremacy or predominance of regular law, as
opposed to the influence of arbitrary power, excluding the
existence of arbitrariness, of prerogative, even of wide discre-
B tionary authority on the part of the govermm.:nt"

has been discarded in the later editions of his book. That is because
it was realized that it is not necessary that where law ends, tyranny
should begin. As Culp Davis said, where the law ends, discretion
c begins and the exercise of discretion may mean either beneficence or
tyranny, either justice or injustice, either reasonableness or arbitrari-
ness . ......... 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
D
Another defmition 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 :
E "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
F 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 or
G public officers, then there is no rule of law in any modern
State. ....... it is impossible to enunciate the rule of law which
has as its basis that no decision can be made unless there is a
certain rule to govern the decision.

H Leaving aside these extravagant versions of rule of law,
ADVOCATES ASSN. v. U.O.L [VERMA, J.) 745

there is a genuine concept of rule of law and that concept A
implies equality befcire the law or equal subjection of all
classes to the ordinary law. But, if rule of law is to be a basic
structure of the Constitution, one must find specific
provisions in the Constitution embody the constituent ele-
ments of the concept. I cannot conceive of rnle of law as a
B
twinkling star up above the Constitution. To be a basic strnc-
ture, it must be a temstrial concept having its habitat within the
four comers of the Constitution. The provisions of the. Constitu-
tion were enacted with a view to ensure the rnle of law. Even if
I assume that rnle of law is basic strncture, it seems to me that
the meaning and the constituent elements of the concept must c
be gathered from the enacting provisions of the Constitution.
The equality aspect of the rnle of law and of democratic
republicanism is provided in Article 14. Maybe, the other ar-
ticles referred to do the same duty." ·

(emphasis supplied) D
(pages 136-37)

It is, therefore, realistic that there has to be room for discretionary
authority within the operation of the rule of law, even though it has to be
reduced to the minimum extent necessary for proper govenance; and within E
the area of discretionary authority, the existence of proper guidelines or
norms of general application excludes any arbitrary exercise of discretion-
ary authority. In such a situation, the exercise of discretionary authority in
its application to individuals, according to proper guidelines or norms,
further reduces the area of discretion; but to that extent discretionary F
authority has to be given to make the system workable. A further check in
that limited sphere is provided by the conferment of the discretionary
authority not to one individual but to a body of men, requiring the final
decision to be taken after full interaction and effective consultation be-
tween them, to ensure projection of all likely points of view and procuring G
the element of plurality in the final decision with the benefit of the
collective wisdom of all those involved in the process. The conferment of
this discretionary authority 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 H
746 ' SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A also, therefore, matches the constitutional scheme and the constitutional
purpose for which these provision were enacted.

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
B 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
c 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.
D It is essentially a discharge of a constitutional trust of which certain
constitutional functionaries are collectively repositories ....... What
Endmond Bruke said is to be recalled. :

"All persons possessing a position of power ought to be
strongly and awfully impressed with an idea that they act in
E trust and are to account for their conduct in that trust to the
one great Master, Author and Founder of Society."

(emphasis supplied)
(pages 457-58 of SCR)
F
In view of the fact that the constitutional functionaries to whom the
task has been entrusted discharge a 'participatory constitutional function',
it is instructive to recall the prophetic warning of Dr. Rajendra Prasad in
his speech, President of the Constituent Assembly, while moving for adop-
tion of the Constitution of India. He said :
G
We have prepared a democratic Constitution. But successful
working of democratic institutions requires in those who have to
work them willingness to respect the viewpoints of others, capacity
for compromise and accommodation. Many things which cannot be
H written in a Constitution are done by conventions. Let me hope that
ADVOCATES ASSN. v. U.0.1. [VERMA, J.) 747

we shall show those capacities and develop those conventions. The A
way in which we have been able to draw this Constitution without
taking recourse to voting and to divisions in lobbies strengthens
that hope.

Whatever the Constitution may or may not provide, the welfare B
of the country will depend upon the way in which the country is
administered. That will depend upon the men who administer it. ..... .
If the people who are elected are capable and men of character
and integrity, they would be able to make the beat even of a
defective Constitution. If they are lacking in these, the Constitution
cannot help the country. After all, a Constitution like a machine is C
a lifeless thing. It acquires Zife because of the men who control it and
operate it, and India needs today nothing more than a set of honest
men who will have the interest of the country before them. There is
a fissiparous tendency arising out of various elements in our life.
We have communal differences, caste differences, language dif- D
ferences, provincial differences and so forth. It requires men of
strong character, men of vision, men who will not sacrifice the
interests of the country at large for the sake of smaller groups and
areas and who will rise over the prejudices which are born of these
differences. We can on!y hope that the country will throw up such E
men in abundance. ...... In India today I feel that 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
F
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 Wt'
have succeeded in liberating."

(emphasis supplied)
G
(The Framing of India's Constitution, Vol. IV - B Shiva Rao
- pages 957-58)

The need for judicial determination of this controversy has arisen
only because the warning of Dr. Rajendra Prasad does not appear to have H
748 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A bren duly heeded by the functionaries entrusted with the constitutional
ohligation 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.

B 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
propensities and background of the appointee are well known. The collec-
tive wisdom of the constitutional functionaries involved in the process of
appointing superior Judges is expected to ensure that persons of unim-
C peachable integrity alone are appointed to these high offices and no
doubtful persons gain entry. It is not unlikely that the care and attention
expected from them in the discharge of this obligation has not been
bestowed in all cases. It is, therefore, time that all the constitutional
functionaries involved in the process of appointment of superior Judges
D should be fully alive to the serious implications of their constitutional
obligation and be zealous in its discharge in order to ensure that no
doubtful appointment can be made. This is not difficult to achieve.

The question of primacy of the role of the Chief Justice of India in
E the context of appointment of Judges in the Supreme Court and the High
Courts must be considered in this backdrop for the proper picture of the
constitutional scheme to emerge from the mixture of various hues, to
achieve the constitutional purpose of selecting the best available for com-
position of the Supreme Court and the High Courts, so essential to ensure
F the independence of the judiciary, and, thereby, to preserve democracy. A
fortiori any· construction of the constitutional provisions which conflicts
with this constitutional purpose or negates the avowed object has to be
eschewed, being opposed to the true meaning and spirit of the Constitution
and, therefore, an alien concept.
G
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 'consultation', when the con-
sultation is with the Chief Justice of India as the head of the Indian
H Judiciary, for the purpose of composition of higher judiciary, has to be
ADVOCATES ASSN. v. U.O.I. [VERMA, J.] 749

distinguished from the colour the same word 'consultation' may take in the A
context of the executive associated in that process to assist in the selection
of the best available material.

In S.P. Gupta, the majority comprising of Bhagwati, J. (as he then
was), Fazal Ali; J., Desai, J. and Venkataramiah, J. (as he then was), took B
the view, in substance that the opinion of the Chief Justice of India does
not have primacy in the matter of appointments of Judges of the Supreme
Court and the High Courts; that the primacy is with the Central Govern-
ment which is to take the decision after consulting all the constitutional
functionaries; and the Central Government is not sound to act in accord- C
ance 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 th;:-t the executive's 1ight to D
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 Govern-
E
ment in the matter of appointments, which gives rise to the occasion for its
reconsideration.

It is also of significance, as noticed in Subhash Sharma, that 'the
Union Government has quite often, both before the Parliament and out- p
side, stated that it has, as a matter of policy, not made any appointments
to the superior judiciary without the name being cleared by the Chief
Justice of India.' This assertion of the Government of India was reiterated,
on affidavit, at the hearing before us, by stating that, barring a few excep-
tions, all appointments to the superior judiciary were made only in accord-
ance with the opinion of the Chief Justice of India, notwithstanding the G
majority view in S.P. Gupta. The true significance of this stand of the
Government of India-is, that in the actual working of this process, even the
executive attaches primacy to the role of the Chief Justice of India in the
matter of appointments to the superior judiciary, not withstanding the
decision in S.P. Gupta that the primacy is with the Government of India H
750 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A and not in the Chief Justice of India.
The question of primacy of the role of the Chief Justice of India,
therefore, arises in this background.

The principal provisions of the Constitution, mainly with refer-
B ence to which the questions referred have to be answered, are the following

"124. Establishment and constitution of Supreme Court. -(1)
There shall be a Supreme Court of India consisting of a Chief
C Justice of India and until Parliament by law prescribes a larger
number, of not more than seven (now "twenty-five" vide Act 22 of
1986) other Judges.

(2) Every Judge of the Supreme Court shall be appointed by
the President by warrant under his hand and seal after consultation
D with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty-five
years:

E Provided that in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of India shall always be con-
sulted ;

Provided further that -

F (a) a judge may, by writing under his hand addressed to the
President, resign his office;

(b) a large may be removed from his office in the manner
provided in clause (4).

G xxxx xxxx xxxx

216. Constitution of High Courts. - 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.

H 217. Appointment and conditions of the office of a Judge of a
ADVOCATESASSN. v. U.0.1.[VERMA,J.) 751

High Court.- (1) Every Judge of a High Court shall be appointed A
by the President by warrant under his hand and seal after consult-
ation 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 B
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 C
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;
D
(c) the office of a Judge shall be vacated by his being ap-
pointed 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 t11e territory of India.
E
(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 con-
sultation with the Chief Justice of India and the decision of the
President shall be final. F
"222. Transfer of a Judge from on High Court to another.- (1)
The President may, after consultation with the Chief Justice of
India, transfer a Judge from one High Court to any other High
Court.
G
(2) When a Judge has been or is so transferred, he shall during
the period he serves, after the commencement of the Constitution
(Fifteenth Amendment) Act, 1963, as a Judge of the other High
Court, be entitled to receive in addition to his salary such com-
pensatory allowance as may be determined by Parliament by law H
752 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A and, until so determined, such compensatory allowance as the
President may by order fix."

PRIMACY OF THE CHIEF JUSTICE OF INDIA

This question arises for the purposes of appointments of Judges in
B the Supreme Court in accordance with Article 124(2), and in the High
Courts in accordance with Article 217(1); and transfer of a Judge/Chief
Justice from on High Court to another in accordance with Article 222 of
the Constitution.

We begin with a note of caution, thus :
c
"O, it is excellent
To have a giant's strength;
but it is tyrannous
To use it like a giant."
D
(Shakespeare in 'Measure of Measure')

The debate on primacy is intended to determine, who amongst the
constitutional functionaries involved in the integrated process of appoint-
ments ~s best equipped to discharge the greater burden attached to the role
E of primacy, of making the proper choice; and this debate is not to deter-
mine who between them is entitled to greater importance or is to take the
winner's prize at the end of the debate. The task before us has to be
performed with this perception.

The primacy of one constitutional functionary qua the other, who
F together participate in the performance of this function assumes sig-
nificance only when they cannot reach an agreed conclusion. The debate
is academic, when a decision is reached by agreement taking into account
the opinion of every one participating together in the process, as primarily
intended. The situation of a difference at the end, raising the question of
G prima(,-y is best avoided by each constitutional functionary remembering
that all of them are participants in a joint venture, the aim of which is to
find out and select the most suitable candidate for appointment, after
assessing the comparative merit of all those available. This exercise must
be performed as a pious duty to discharge the constitutional obligation
imposed collectively on the highest functionaries drawn from the executive
H and the· judiciary, in view of the great significance and these appointments.
ADVOCATES ASSN. v. U.O.I.[VERMA,J.] 753

The common purpose to be achieved, points in the direction that emphasis A
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. B
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 C
them which cannot be ironed out by joint effort, the question of primacy
would arise to avoid stalemate.

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 words, primacy should be in him who qualifies D
to be treated as the 'expert' in the field. Comparatively greater weight to
his opinion may then be attached.

The aforementioned perception in all the constitutional functionaries
associated in the integrated participatory consultative process to achieve E
the avowed common purpose should ordinarily prevent the situation when
the question of primacy arises; and in the exceptional cases when it does
arise, the functionary having primacy would do well to respect the view-
point of others and recall that it implies the carrying by him of a greater
burden. This will ensure better performance of the role with primacy, in
the proper spirit, and will make it easier for the others to accept the F
primacy.

Appointments

The appointment of Judges to the Supreme Court and the High
Courts is made by the President and is, therefore, ultimately an executive G
act. Article 74(1) clearly provides, and the proviso inserted therein by the
Constnution (Forty-Fourth Amendment) Act, 1978 reinforces, that the
President, in exercise of his functions, shall act in accordance with the
advice tendered by the Council of Ministers. If Articles 124(2) and 217(1)
provided for appointments of Judges by the President without obligatory H
754 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A consultation with the functionaries specified therein, then, by virtue of the
full effect of Article 74, there would be no room for any controversy that
the appointments were not to be made by the executive in its absolute
discretion. A situation of this kind existed under the Government of India
Acts in the pre-Constitution era, even when, in practice, the Chief Justice
B of the High Court was usually consulted, since a Judge of the High Court
was appointed in the absolute discretion of the Crown.

The Government of India Act, 1919 provided in Section 101 for the
constitution of High Courts; and the appointment of the Chief Justice and
the permanent Judges was in the absolute discretion of the Crown, subject
C only the prescribed conditions of eligibility. The tenure of their office,
according to Section 102, was dependent entirely on the Crown's pleasure.
The relevant provision, were :

"101. Constitution of high courts. •

D (1) .............. .

(2) Each high court shall consist of a chief justice of as many
other judges as His Majesty may think fit to appoint :

102. Tenure of judges of high Courts.- (1) Every judge of a high
E court shall hold office during His Majesty's pleasure.

xxx xxx xxx

Then, in the Government of India Act, 1935, provision for the
establishment and constitution of the Federal Court was made in Section
F 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
G 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
H Governor-General resign his office;
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 755

(b) a judge may be removed from his office by His Majesty by A
warrant uncfer the Royal Sign Manual on the ground of mis-
behaviour 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.
B
xxx xxx xxx

"220 Constitution of High Courts. (1) ............ .

(2) Every judge of a High Court shall be appointed by His C
Majesty by warrant under the Royal Sign Manual and shall hold
office until he attains the age of sixty years :

Provided that -

(a) a judge may, by resignation under his hand addressed to D
the Governor 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 mis-
behaviour or of infirmity of mind of body if the Judicial Committee E
of the ~rivy Council on reference being to them by His Majesty,
report that the judge ought on any such ground to be removed.

(c) the office of a judge shall be vacated by his being appointed
by His Majesty to be a judge of the Federal° Court or of another
High Court. F

xxx xxx xxx

T'.ms, even under the Government of India Act, 1935, appointments
of Judges of the Federal Court and the High Courts were in the absolute
discretion of the Crown or, in other words, of the executive, with no specific G
provision for consultation with the Chief Justice in the appointment
process. The consultation, if any with the Chief Justice under the Govern-
ment of India Acts was merely to enable the executive to take into account
that view, if it so desired, but prior consultation with the Chief Justice was
no an essential pre-requisite. H
756 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A When the Constitution was being drafted, there was general agree-
ment that the appointments of Judges in the superior judiciary should not
be left to the absolute discretion of the executive, and this was the reason
for the provision made in the Constitution imposing the obligation to
consult the Chief Justice of India and the Chief Justice of the High Court.
B This was done to achieve independence of the Judges of the superior
judiciary even at the time of their appointment, instead of confining it only
to the provision of security of tenure and other conditions of service after
the appointment was made. It was realised that the independence of the
judiciary had to be safeguarded not merely by providing security of tenure
and other conditions of service after the appointment, but also by prevent-
C ing the influence of political considerations in making the appointments, if
left to the absolute discretion of the executive as the appointing authority.
It is this reason which impelled the incorporation of the obligation of
consultation with the Chief Justice of India and the Chief Justice of the
High Court in Articles 124(2) and 217(1). The Constituent Assembly
D Debates disclose this purpose in prescribing for such consultation, even
though the appointment is ultimately an executive act.

This clear departure in the constitutional scheme from the earlier
pattern in the Government of India Acts, wherein the appointments were
E 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 require-
ment of consultation, even if the opinion given by the consultees of the
F 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
G 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.

The consideration must, therefore, be confined to the comparative
weight to be attached to the opinion of the Chief Justice of India vis-a-vis
H the opinion of the other consultees and the Central Government.
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 757

It follows that the view of Bhagwati, J. (as he then was) in S.P. Gupta A
which reflects the majority opinion therein, at least to the extent indicated
hereafter, conflicts with this constitutional scheme, and, with respect, does
not appear to be a correct construction of the provisions in Article 124(2)
and 217(1). Certain portions from the opinion of Bhagwati, J. to this effect
are, as under :
B
"............ It is clear on a plain reading of these two Articles that
the Chief Justice of India, the Chief Justice of the High Court and
such other Judges of the High Courts and of the Supreme Court
as the Central Government may deem it necessary to consult, are
merely constitutional functionaries having a consultative role and C
the power of appointment resides solely and exclusively in the Central
Government. ........ .

............. It would there/ore be open to the Central Government to
override the opinion given by the constitutional functionaries required
to be consulted and to arrive at its own decision in. regard to the D
appointment of the 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. ............ .
E
(emphasis supplied)
(pages 541-42)

It is obvious, that the provision for consultation with the Chief Justice
of India and, in the case of the High Courts, with the Chief Justice of the
High Court, was introduced because of the realisation that the Chief p
Justice is best epuipped 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, since the provisions for securing his independence
after appointment were alone not sufficient for an ind~pendent judiciary.
At the same time, the phraseology used indicated that giving absolute G
discretion or the power of veto to the Chief Justice of India as an individual
in the matter of appointments was not considered desirable, so that there
·should remain some power with the executive to be exercised as a check,
whenever necessary. The indication is, that in the choice of a candidate
suitable for appointment, the opinion of the Chief Justice of India should H
758 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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'
B 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 ~o the executive, which earlier had
absolute discretion under the Government of India Acts.

C 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, without any
D difference of opinion. However, if conflicting opinions emerge at the end
of the process, then only the question of giving primacy to the opinion of
any of the consultees arises. For reason indicated earlier, primacy to the
executive is negatived by the historical change and the nature of functions
required to be performed by each. The primacy must, therefore, lie in the
final opinion of the Chief Justice of India, unless for very goods reasons
E known to the executive and disclosed to the Chief Justice of India, that
appointment is not considered to be suitable.

This is not surprismg if we remember that even in United Kingdom
where similar judicial appointments are in the absolute discretion of the
p executive, these appointments are made by convention 'on the advice of
the Prime Minister after consultation with the Lord Chancellor, who
himself consults with senior members of the judiciary before making his
choice or consulting with the Prime Minister' and the 'Prime Minister
would depart from the recommendations of the Lord Chancellor only in
the most exceptional case.' (See the Politics of Judiciary - J.A.G. Griffith
G at p.17, 18). the Lord Chancellor, Lord Machay speaking recently on 'The
Role of the Judge in a Democracy' said :

"One of the most important responsibilities of a Lord Chancellor
in our democracy is for judicial appointments. It is my duty to
H ensure that neither political bias, nor personal favouritism, nor
ADVOCATES ASSN. v. U.O.L [VERMA,J.] 759

animosity play any pa1t in the appointment of judges and that they A
are selected regardless of sex, ethnic origin or religion of the basis
of their fitness to carry out the solemn responsibility of judicial
office. I look for those with integrity, professional ability, experience,
standing, a sound temperament and good health. To achieve this I
consult widely and regularly with the judges, Law Lords and other B
members of the legal profession. In naturally attach particular
importance to the opinion of the Divisions of the H;igh Court.
Judges therefore have an important role in judicial appointments,
albeit informally rather than proscribed by statute."

(emphasis supplied) C
(Commonwealth Law Bulletin, Vol. 18, Number 4, October
1992, at p.1257)

With the express provision in the Indian Constitution for consultation
with the Chief Justice of India, the role of the Chief Justice of India cannot D
be of significance than that of the Lord Chancellor in United Kingdom.

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 E
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 F
matter which is, or can be, debated during the election campaign. There is
thus no manner in which the assumed accountability of the executivein 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 G
appointment which gives rise to criticism levelled by the ever vigilant Bar.
That controversy is raised primarily in the courts. Similarly, the Judges of
the Supreme Court and the High Courts, whose participation is involved
with the Chief Justice in the functioning of the courts, and whose opinion
is taken into account in the selection process, bear the consequences and H
760 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A become accountable. Thus, in actual practice, the real accountability in the
matter of appointments of superior Judges is of the Chief Justice of India
and the Chief Justices of the High Courts, and not of the executive which
has always held out, as it did even at the hearing before us that, except for
rare instances, the executive is guided in the matter of appointments by the
B opinion of the Chief Justice of India.

If that is the position in actual practice of the constitutional profes-
sions relating to the appointments of the superior Judges, wherein the
executive itself holds out that it gives primacy to the opinion of the Chief
Justice. of India, and in the matter of accountability also it indicates the
C primary responsibility of the Chief Justice of India, it stands to reason that
the actual practice being in conformity with the constitutional scheme,
should also be accorded le!!,al sanction by permissible constitutional inter-
pretation. This reason given by the majority in S.P. Gupta for its view, that
the executive has primacy, does not withstand scrutiny, and is also not in
accord with the existing practice and the perception even of the executive.
D
However, it need hardly be stressed that the primacy of the opinion
of the Chief Justice of India in this context is, in effect, primacy of the
opinion of the Chief Justice of India formed collectively, that is to say, after
taking into account the views of his senior colleagues who are required to
E be consulted by him for the formation of his opinion.

In view of the provision in article 74(1), the expression 'President' in
Articles 124(2) and 217(1) me.ans the President acting in accordance with
the advice of the Council of Ministers with the Prime Minister at the head;
and the advice given by the Council of Ministers has to accord with the
F mandate in the Constitution, or, in other words, with the construction made
of Articles 124(2) and 217(1) by this Court, in discharge of its constitutional
duty to interpret the Constitution. A fortiori, advice given by the Council
of Ministers which binds the President and requires him to act in accord-
ance therewith, had to be the advice given in accordance with the constitu-
G tional provisions, as interpreted by this Court.

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
H Justice of India, and the President is bound by Article 74(1) to act in
ADVOCATES ASSN. v. u.o.r. [VERMA, J .] 761

accordance with that advice, then the constitutional purpose of introducing A
the mandatory requirement of consultation in Articles 124(2) and 217(1)
would be frustrated. It is for this reason, that in the matteir of appointments
of Judges of the superior judiciary, the interaction and harmonisation 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 B
President is to act in accordance with the advice of the Coumca of Ministers
as provided in Article 74(1); and the advice of the Council o.f Ministers is
to be given in. accordance with Articles 124(2) and 217(1), as .c:onstrued by
this Court. In this sphere, Article 74(1) is circumscribed by the :requirement
of Articles 124(2) and 217(1). and all of them have to be read together.
c
The above view also accords with the provisions in th.e Constitution
pertaining to the removal from office of Judges of the Supreme Court and
the High Courts. The removal of a Supreme Court Judge in accordance
with clauses (4) and (5) of Article 124, and of a High Court judge similarly,
as provided in Article 218, requires a different scheme to \be followed, to D
which Article 74(1), in terms does not apply. It cannot be suggested that
the President, while making an order removing a Judge of the ~·upreme
Court or of a High Court, is to be governed entirely by the advice of the
Council of Ministers in accordance with Article 74(1), ignoring the ~·-pecial
provisions relating to the removal of a Judge, inc;orporated in the Con •stitu-
tion. Similarly, in the case of appointments, the special provision pres crib- E
ing the process for appointment is of significance, and Article 74(1) has to
be read along therewith, and not in isolation, to make correct construcl-i on.

The question of primacy of the role of the Chief Justice of India h 'ls
to be examined not merely with reference to the fact that an appointm, ~nt
is an executive act, or with reference only to the comparative constitutior, 'lh1 F
status of the different consultees involved in the process, but with referem 'e
also to the constitutional purpose sought to be achieved by thes,'
provisions, and the manner in which that purpose can be best achieved.

Providing for the role of the judiciary as well as the executive in the
G
integrated process of appointment merely indicated that it is a par-
ticipatory consultative process, and the purpose is best served if at the end
of an effective consultative process between all the consultees the decision
is reached by consensus, and no question arises of giving primacy to any
consultee. Primarily, it is this indication which is given by the constitutional
provisions, and the constitutional purpose would be best served if the H
762 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A decision is made by consensus without the need of giving primacy to any
one of the consultees on account of any difference remaining between
them. The :iuesfon of primacy of the opinion of any one of the constitu-
tional functionaries qua the others would arise only if the resultant of the
consultative process is not one opinion reached by consensus.

B 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, inde-
C pendent ar.d fearless judge. Several attributes together combine to con-
stitute such a personality. Legal expertise, ability to handle cases, proper
personal ~onduct 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
D made from the Bar and the subordinate judiciary. Appointment to the
Supreme Court is mainly from amongst High Court Judges, and on oc-
casion directly from the Bar. The arena of performance of those men are
the courts, it is, therefore, obvious that the maximum opportunity for
adjudpng their ability and traits, is in the courts and, therefore, the Judges
are b~st suited to assess their true worth and fitness for appointment as
E judgis. This is obviously the reason for introducing the requirement of
conrultation with the Chief Justice of India in the matter of appointment
of ill Judges, and with the Chief Justice of the High Court in the case of
appointment of a Judge in a High Court. Even the personal traits of the
members of the Bar and the Judges are quite often fully known to the Chief
Jwtice of India and the Chief Justice of the High Court who get such
F lliormation (rom various sources. There may however, be some personal
trait of an individual laWyer or Judge, which may be better known to the
executive and may be unknown to the Chief Justice of India and the Chief
1 ustice of the High Court, and which may be relevant for assessing his

potentiality to become a good Judge. It is for this reason, that the executive
G is also one of the consultees in the process of appointment. The object of
selecting the best men to constitute the superior judiciary is achieved by
requiring consultation with not only the judiciary but also the executive to
ensure that every relevant particular about the candidate is known and duly
weighed as a result of effective consultation between all the consultee,
before the appointment is made. It is the role assigned to the judiciary and
Ii
ADVOCATES ASSN. v. U.O.l. [VERMA, J.] 763

the executive in the process of appointment of Judges which is the true A
index for deciding the question of primacy between them, in case of any
difference in their opinion. The answer which best subserves this constitu-
tional purpose would be the. correct answer.

It has been indicated that the judiciary being best suited and having
the best opportunity to assess the true worth of the candidates, the con- B
stitutional purpose of selecting the best available men for appointment as
superior Judges is best served by ascribing to the judiciary, as a consultee,
a more significant role in the process of appointment. The only question is
of the extent of such significance and the true meaning of the primacy of
the role of the Chief Justice of India in this context.
c
It is of considerable significance that Bhagwati, J. (as he than was),
after subscribing to the majority view in S.P. Gupta, speaking for the
unanimous view of the Constitution Bench, in Ashok Kumar Yadav and
Others v. State of Haryana and Others, [1985] 4 SCC 417, stated thus :
D
"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 E
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 :he: Judi~ial 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 F
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 the State should be invited to participate
in the interview as an expert and since such sitting Judge comes as G
an expert who, by reason of the fact that he is a sitting.High Court
Judge, knows the quality and character of the candidates appearing
for the interview, the advice given by him should ordinarily be
accepted, unless there are strong and cogent reason for not accepting
such advice and such strong and cogent reasons must be recorded H
764 SUPREME COURT REFORTS (1993) SUPP. 2 S.C.R.

A in writing by the Chairman and members of the Public Service
CJmmission. We are giving this direction to the Public Service
C;Jmmission in every State because we are anxious that the finest
talent should be recruited in the Judicial Service and that can be
secured only by having a teal expert whose advice constitutes a
determinative factor in the selection process."
B
(emphasis supplied)
(pages 456-57)

We respectfully agree with the above observation made in the context
C of the subordinate judiciary, and would add that it is even more true in the
context of appointments made to the superior judiciary. The majority
opinion of Bhagwati, J. in S.P. Gupta must be read along with the above
unanimous opinion of the Constitution Bench in Ashok Kumar Yadav.

It has to be borne in mind that the principle of non-arbitrariness
D which is an essential attribute of the rule of law is all pervasive throughout
the Constitution; and an adjunct: of this principle of the absence of absolute
power in one individual in any sphere of constitutional activity. The pos-
sibility of intrusion of arbitrariness has to be kept in view, and eschewed,
in constitutional interpretation and, therefore, the meaning of the opinion
of the Chief Justice of India, in the context of primacy, must be ascertained.
E A homogenous mixture, which accords with the constitutional purpose and
its ethos, indicates that it is the opinion of the judiciary 'symbolised by the
· view of the Chief Justice of India' which is given greater significance or
primacy in the matter of appointments. In other words, rhe view of the
Chief Justice of India is to be expressed in the consultative process as truly
F reflective of the opinion of the judiciary, which means that it must neces-
sary have the element of plurality in its formation. In actual practice, this
is how the Chief Justice of India does, and is expected to function, so that
the final opinion expressed by him is mot merely his individual opinion, but
the collective opinion formed after taking into account the view of some
other Judges who are traditionally associated with this function.
G
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 constitu-
tional 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
H the Chief J 11JStice of India', is to be obtained by consultation with the Chief
ADVOCATES ASSN. v. U.0.1. I VERMA, J.] 765

Justice of India; and it is this opinion which has primacy. A
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 B
decision, are further checks against arbitrariness. This is how idealism and
pragmatism are reconciled and integrated, to make the system workable in
a satisfactory manner. Entrustment of the task of appointment of superior
Judges to high constitutional functionaries; the greatest significance at-
tached to the view of the Chief Justice of India, who is best equipped to c
assess the true worth of the candidates for adjudging their suitability; the
opinion of the Chief Justice of India being the collective opinion formed
after taking info account the views of some of his colleagues; and the
executive being permitted to prevent and appointment considered to be
unsuitable, for strong reasons disclosed to the Chief Justice of India,
provide the best method, in the constitutional scneme, to achieve the D
constitutional purpose without conferring absolute discretion or veto upon
either the judiciary or the executive, much less in any individual, be he the
Chief Justice of India or the Prime Minister.

The norms developed in actual practice, which have crystallised into E
conventions in this behalf, as visualised in the speech of the President of
the Constituent Assembly, are mentioned later.

Transfers

Every power vested in a public authority is to subserve a public F
purpose, and must invariably be exercised to promote interest. This
guideline is inherent in every such provision, and so also in Article 222.
The provision requiring exercise of this power by the President only after
consultation with the Chief Justice of India, and the absence of the require-
ment of consultation with any other functionary, is clearly indicative of the G
determinative nature, not mere primacy, of the Chief Justice of India's
opinion in this matter. The entire gamut in respect of the transfer of Judges
is covered by Union of India v./ Sankal Chand Himatlal Sheth and Anr.,
[1976] 1 S.C.R. 423 and S.P. Gupta & Ors. etc. etc. v. Union of India & Ors
etc. etc., [1982] 2 S.C:R. 365. It was held by majority in both the decisions
that there is no requirement of prior consent of the Judge before his H
766 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A transfer under Article 222. This power has been so exercised since then,
and transfer of Chief Justice has been the ordinary rule. It is unnecessary
to repeat the same.

The initiation of the proposal for the transfer of a Judge/Chief Justice
should be by the Chief Justice of india alone. This requirement in the case
B of a transfer is greater, since consultation with the Chief Justice of India
alone is prescribed. However, in the case of Jammu & Kashmir, the special
provision relating to that State must be kept in view, while initiating the
proposal.

The power of transfer can be exercised only in 'public interest' i.e.
C 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 recommenda-
tion 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
D 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
E transfer policy, irrespective of whether they gave an undertaking to go on
transfer or not.

The Constituent Assembly Debates indicate that the High Court
Judges were intended to constitute and All India Cadre. This position
cannot now be doubted after adoption of the policy of appointing Chief
F Justices from outside and the maintenance of an All India seniority based
on the date of initial appointment, treating all High Courts as equal. If the
transfer of a Judge on appointment as Chief Justice is not punitive, there
is no occasion to treat the transfer of any other Judge as punitive.

G There is nothing in Article 222 to require the consent of a
Judge/Chief Justice for his first or even a subsequent transfer. Since his
consent is not read as a requirement for the first transfer, there is no reason
to require his consent for any subsequent transfer, according to the same
provision. The power under Article 222 is available throughout the tenure
of a High Court Judge/Chief Justice, and it is not exhausted after the first
H transfer is made. The contrary view in S.P. Gupta has no basis in the·
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 767

Constitution. It is reasonable to assume that the Chief Justice of India will A
recommend a subsequent transfer only in public interest, for promoting
better administration of justice throughout the country, or at the request
of the concerned Judge. As indicated, at least now, after the lapse of more
than a decade since the decision in S.P. Gupta, there is no reason to treat
any transfer as punitive; and, therefore, the observation in S.P. Gupta that
a punitive transfer is impermissible has to application any more. As indi- B
cated by us later, a transfer made in accordance with the recoffiI\lendation
of the Chief Justice of India, is not justiciable.

Promotion of public interest by proper functioning of the High
Courts and, for that reason, the transfer of any Judge/ Chief Justice from C
one High Court to another must be the lodestar for the performance of
this duty enjoined on the Chief Justice of India, as the head of the India
judiciary. Suitable norms, including those indicated hereafter, must be
followed by the ChiefJustice of India, for his guidance, while dealing with
individual cases.
D
Meaning of President

The expression 'President' in Articles 124(2), 217(1) and 222 means
the President acting on 'the aid and advice of the Council of Ministers in
accordance with Article 74(1); and the advice given by the Council of
Ministers had to be in accordance with the concept of the primacy of the E
Chief Justice of India 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, there-
fore , the advice must accord with the principles indicated herein.
F
NORMS

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 G
President of the Constituent Assembly. The hereinafter mentioned emerg-
ing from the actual practice and crystallised into conventions - not exhaus-
tive - are expected to be observed by the functionaries to regulate the
exercise of their discretionary power in the matters of appointments and
transfers. H
768 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Appointments

(1) What is the meaning of the opinion of the judiciary 'symbolised
by the view of the Chief .T ustice .of India' ?

This opinion has to be formed in a pragmatic manner and past
B practice based on convention is a safe guide. In matters relating to appoint-
ments in the Supreme Court, the opinion given by the Chief Justice of India
in the consultative process has to be formed taking into account the views
of the two seniormost judges of the Supreme Court. The Chief Justice of
India is also expected to ascertain the views of the seniormost Judge of the
C Supreme Court whose opinion is likely to be significant in adjudging the
suitability of the candidate, by reason of the fact that he has come from
the same High Court, or otherwise. Article 124(2) is an indication that
ascertainment of the views of some other Judges of the Supreme Court is
requisite. The object underlying Article 124(2) is achieved in this manner
as the Chief Justice of India consults them for the formation of his opinion.
D This provision in article 124(2) is the basis for the existing convention which
requiies the Chief Justice of India to consult some Judges of the Supreme
Court before making his recommendation. This ensures that the opinion
of the Chief Justice of India is not merely his individual opinion, but an
opinion formed collectively by a body of men at the apex level in the
E judiciary.

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 with the affairs of
the concerned High Court. The Chief Justice of India may also ascertain
F 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 to the greatest weight, and the opinion of the
other functionaries involved must be given due weight, in the formation of
G 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.

The Chief Justice of India, for the formation of his opinion, has to
adopt a course which would enable him to discharge duty objectively to
H select the best available persons as Judges of the Supreme Court and the
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 769

High Courts. The ascertainment of the opinion of the other Judges by the A
Chief Justice of India and the Chief Justice of the High Court, and the
expression of their opinion, must be in writing to avoid any ambiguity.

(2) The Chief Justice of India can recommend the initial appoint-
ment of a person to a High Court other than that for which the proposal
was initiated, provided that the constitutional requirements are satisfied. B

(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 sig- C
nificance. 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 D
considered for appointment to the Supreme Court according to their
seniority, this would also lend greater credence to the process of appoint-
ment and would avoid any distortion in the seniority between the appoin-
tees drawn even from the same High Court. The likelihood of the Supreme
Court being deprived of the benefit of the services of some who are E
considered suitable for appointment, but decline a belated offer, would
also be prevented.

(4) Due consideration of every legitimate expectation in the decision
making process is a requirement of the rule of non-arbitrariness and,
therefore, this also is a norm to be observed by the Chief Justice of India F
in recommending appointments to the Supreme Court. Obviously, this
factor applies only to those considered suitable and at least equally
meritorious bv the Chief Justice of India, for appointment to the Supreme
Court. Just as a High Court Judge at the time of his initial appointment
has the legitimate expectation to become Chief Justice of a High Court in G
.· his turn in the ordinary course, he has the legitimate expectation to be
.J considered for appointment to the Supreme Court in his turn, according
to his seniority.

This legitimate expectation has relevance on the ground of longer
experience on the Bench, and is a factor material for determining the H
770 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A suitability of the appointee. A long with other factors, such as, proper
representation of all sections of the people from all parts of the country,
legitimate expectation of the suitable and equally meritorious Judges to be
considered in their turn is a relevant factor for due consideration while
making the choice of the most suitable and meritorious amongst them, the
outweighing consideration being merit, to select the best available for the
B apex court.

(5) The opinion of the Chief Justice of India, for the purpose of
Articles 124(2). and 217(1), so given has primacy in the matter of all
appointments; and no appointment can be made by the President under
C these provisions to the Supreme Court and the High Courts, unless it is in
conformity with the final opinion of the Chief Justice of India, formed in
the manner indicated.

(6) The distinction between making an appointment in conformity
D with the opinion of the Chief Justice of India, and not making an appoint-
ment recommended by the Chief Justice of India to be borne in mind. Even
though no appointment can be made unless it is in conformity with the
opinion of the Chief Justice of India, yet in an exceptional case, where the
facts justify, " recommendee of the Chief Justice of India, if considered
unsuitable on the basis of positive material available on record and placed
E before the Chief Justice of India, may not be appointed 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
F 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.

It is only to this limited extent of non-appointment of a recommendee
G 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
H Justice of India, which is the real object of the priqpcy of his opinion and
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 771

Intended to secure the independence of the judiciary and the appointment A
of the best men available with undoubted credentials.

(7) Non-appointment of anyone recommended, on the ground of
unsuitability must be for good reasons, disclosed to the Chief Justice of
India to enable him to reconsider and withdraw his recommendation on
those considerations. If the Chief Justice of India does not find it necessary B
to withdraw his recommendation even thereafter, but the other Judges of
the Supreme Court who have been consulted in the matter are of the view
that it ought to be withdrawn, the non-appointment of that person for
reasons to be recorded, may be permissible in the public interest. If the
non-appointment in a rare case, on this ground, turns out to be a mistake, C
that mistake in the ultimate public interest is less harmful than a wrong
appointment. However, if after due consideration of the reasons disclosed
to the Chief Justice of India, that recommendation is reiterated by the
Chief Justice of India with the unanimous agreement of the Judges of the
Supreme Court consulted in the matter, with reasons for not withdrawing D
the recommendation, then that appointment as a matter of healthy conven-
tion ought to be made.

(8) Some instances when non-appointment is permitted and justified
may be given. Suppose the final opinion of the Chief Justice of India is
contrary to the opinion of the senior Judges consulted by the Chief Justice E
of India and the.senior Judges are of the view that the recommendee is
unsuitable for stated reasons, which are accepted by the President, then
the non-appointment of the candidate recommended by the Chief Justice
of India would be permissible. Similarly, when the recommendation is for
appointment to a High Court, and the opinion of the Chief Justice of the
High Court conflicts with that of the Chief Justice of India, the non-ap- F
pointment, for valid reasons to be recorded and communicated to the Chief
Justice of India, would be permissible. If the tenure as a Judge of the
candidate is likely to be unduly short, the appointment may not be made.
Non-appointment for reasons of doubtful antecedents relating to personal
character and conduct, would also be permissible. The condition of health G
or any such factor relating to the fitness of the candidate for the office may
also justify non-appointment.

(9) In order to ensure effective consultation between all the constitu-
tional functionaries involved in the process, the reasons for disagreement,
if any, must be disclosed to all others, to enable reconsideration on that H
772 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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.

B 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 fmal opinion of the Chief
Justice of India, given after such effective consultation between the con-
C stitutional 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 thf- case of the High Courts. This is the general
D practice prevailing, by convention, followed over the years, and continues
to be the general rule even now, after S.P. Gupta. The executive itself has
so understood the correct procedure, notwithstanding S.P.Gupta, and there
is no reason to depart from it when it is in consonance with the concept
of the independencey of the judiciary.
E (11) The constitutional functionary meant by the expression
'Governor' in Article 217(1), is the Governor acting on the 'aid and advice'
of his Council of Ministers in accordance with Article 163(1) read with
Articles 166(3) and 167.

F (12) Adherence to a time bound schedule would prevent any undue
delay and avoid dilatory methods in the appointment process. On initiation
of the proposal by the Chief Justice of India or the Chief Justice of the
High Court, as the case may be, failure of any other constitutional func-
tionary to express its opinion within the specified period should be con-
strued to mean the deemed agreement of that functionary with the
G recommendation, and the President is expected to make the appointment
in accordance with the final opinion of the Chief Justice of India. In such
a situation, after expiry of the specified time within which all the constitu-
tional functionaries are to give their opinion, the Chief Justice of India is
expected to request the President to make the appointment without any
H further delay, the process of consultation being complete.
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 773

(13) On initiation of the proposal by the Chief Justice of India or the A
Chief Justice of the High Court, as the case may be copies thereof should
be sent simultaneously to all the other constitutional functionaries involved.
Within the period of six weeks from receipt of the same, the other
functionaries must convey their opinion to the Chief Justice of India. In
case any such functionary disagrees, it should convey its disagreement B
within that period to the others. The others, if they change their earlier
opinion, must, within a further period of six weeks, so convey it to the Chief
Justice of India. The Chief Justice of India would then form his final
opinion and convey it to the President within four weeks, for final action
to be taken. It is appropriate that a memorandum of procedure be issued
by the Government of India to this effect, after consulting the Chief Justice C
of India, and with the modifications, if any, suggested by the Chief Justice
of India to effectuate the purpose.

(14) The process of appointment must be in!tiated well in time to
ensure its completion at least one month prior to the date of an an- D
ticipated 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 appoint- E
ment 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, <.ppointments to the p
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, which alone may permit and justify a G
departure from the long standing convention. For this reason, no other
substantive consultative process is involved. There is no reason to depart
from the existing convention and, therefore, any further norm for the
working of Article 124(2) in the appointment of Chief Justice of India is
unnecessary. H
774 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A Transfe1~

(1) In the formation of his opinion, the Chief Justice of India, in the
case of transfer of a Judge other than the Chief Justice, is expected to take
into account the views of the Chief Justice of the High Court from which
the Judge is to be transferred, any Judge of the Supreme Court whose
B opinion may be of significance in that case, as well as the views of at least
one other senior Chief Justice of a High Court, or any other person whose
views are considered relevant by the Chief Justice of India. The personal
factors relating to the concerned Judge, and his response to the proposal,
including his preference of places of tran.;fer, should be taken into account
C by the Chief Justice of India before forming his final opinion objectively,
on the available material, in the public interest for better administration of
justice.

(2) Care must be taken to ensure that no Chief Justice is transferred
without simultaneous appointment of his successor-in- office, and ordinari-
D ly the acting arrangement should not exceed one month, the maximum
period needed usually for the movement of the Chief Justice to their new
positions. This is essential for proper functioning of the High Courts, and ·
to avoid rendering headless any High Court for a significant period which
adversely affects the functioning of the judiciary of that State.
E
(3) The continuing practice of having Acting Chief Justice for long
periods; transferring permanent Chief Justices and replacing them with out
of turn Acting Chief Justices for long periods; appointing more than one
Chief Justice from the same High Court resulting in frustration of the
legitimate expectation of Judges of some other High Court in their turn,
F except in an extraordinary situation, must be deprecated and avoided.
Application of the policy has been quite often selective and it is essential
to make it uniform to prevent any injustice.

( 4) It may be desirable to transfer in advance the seniormost judge
G due for appointment as Chief Justice to the High Court where he is likely
to be appointed 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
H Courts, as far as possible. ·
ADVOCATES ASSN. v. U.0.1.[VERMA,J.] 775

(5) The recommendations in the Report of the Arrears Committee A
(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.

JUSTICIABIL/TY
B
Appointments and Trans[ers

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 C
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, even subconsciously, of any individual. The judicial element being
predominant in the case of appointments, and decisive in transfers, as D
indicated, the need for further judicial review, as in other executive actions,
is eliminated. The reduction of the area of discretion to the minimum, the
element of plurality of Judges in formation of the opinion of the Chief
Justice of India, effecti~e consultation in writing, and prevailing norms to
regulate the area of discretion are sufficient checks against arbitrariness. E

These guidelines in the form of norms are not to be construed as
conferring any justiciable right in the transferred Judge, Apart from the
constitutional requirement of a transfer being made only on the recommen-
dation of the Chief Justice of India, the issue of transfer is not justiciable
on any other ground, including the reasons for the transfer or their suf- F
ficiency. The opinion of the Chief Justice of India formed in the manner
indicated is sufficient safeguard and protection against any arbitrariness or ·
bias, as well as any erosion of the independence of the judiciary.

This is also in accord with the public interest of excluding these
appointments and transferes from litigative debate, to avoid any erosion in G
the credibility of the decisions, and to ensure a free and frank expression
of honest opinion by all the constitutional functionaries, which is essential
for effective consultation and for taking the right decision. The growing
tendency of needless intrusion by strangers and busy-bodies in the
functioning of the judiciary under the garb of public interest litigation, in H
776 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A spite of the caution in S.P. Gupta while expanding the concept of locus
standi, was adverted to recently by a Constitution Bench in Raj Kanwm;
Advocate v. Union vf India and another, (1992) 4 SCC 605. It is therefore,
necessary to spell out clearly the limited scope of judicial review in such
matters, to avoid similar situations in future. Except on the ground of want
B of consultation with the named constitutional functionaries or lack of any
condition of eligibility in the case of an appointment, or of a transfer being
made without the recommendation of the Chief Justice of India, these
matters are not justiciable on any other ground, including that or bias,
which in any case is excluded by the element of plurality in the process of
decision making.
c
Fixation of Judge Strength

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
D the President may from time to time deem it necessary to appoint.' To enable
proper exercise of this furction 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
E 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, result-
ing in negation of the rule of law by the law' delay must be justiciable, to
p compel performance of that duty.

Accordingly, it must be held that fixation of Judge strength in a High
Court is justiciable; and if it is shown that the existing strength is inade-
quate to provide speedy justice to the people - speedy trial being a
requirement of Article 21 - in spite of the optimum efficiency of the existing
G strength, a direction can be issued to assess the felt need and fix the
strength of Judges commensurate with the need to fulfil the State obligation
of providing speedy justice and to thereby 'secure that the operation of the
legal system promotes justice' - a solemn resolve declared also in the
preamble of the Constitution. In making the review of the Judge strength
H in a High Court, the President must attach great weight to the opinion of
ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 777

the Chief Justice of that High Court and the Chief .Justice of India, an if A
the Chief Justice of India so recommends, the exercise must be performed
with due despatch.

The decision in S.P. Gupta, taking the view that this matter is not
justiciable to any extent, doe§ not commend itself to us as a correct
exposition of the constitutional obligation in Article 216 of the Constitution, B
and the constitutional purpose of its enactment. This provision, like all
constitutional provisions, is not to be construed in isolation, but as a part
of the entire constitutional scheme, conforming to the constitutional pur-
pose and its ethos. So construed, this matter is justiciable to the extent and
in the manner indicated. Of course, the area of justiciability does not c
extend further, to enable the Court to make the review and fix the actual
Judge strength itself, instead of requiring the performance of that exercise
in accordance with the recommendation of the Chief Justice of India.

SUMMARY OF THE CONCLUSIONS
D
A brief general summary of the conclusions stated earlier in detail is
given for convenience, as under :

(1) The process of appointment of Judges to the Supreme Court and
the High Courts is an integrated 'participatory consultative process' for E
selecting the best and most suitable persons available for appointment; and
all the constitutional functionaries must perform this duty collectively with
a view primarily to reach an agreed decision, subserving the constitutional
purpose, so that the occasion of primacy does not arise.

(2) Initiation of the proposal for appointment in the case of the F
Supreme Court must be by the Chief Justice of India, and in the case of a
High Court by the Chief Justice of that High Court; and for transfer of a
Judge/Chief 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 G
transfers of Judges/Chief Justices of the High Courts must invariably be
made.

(3) In the event of conflicting op1mons by the constitutional
functionaries, the opinion of the judiciary 'symbolised by the view of the
Chief Justice of India and formed in the mannet indicated, has primacy. H
778 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A (4) No appointment of any Judge to the Supreme Court or any High
Court can be mr.de, 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
B not suitable for appointment, that appointment recommended by the Chief
Justice of India may not be m~.de. 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 recom-
mendation by the Chief Justice of India, the appointment should be made
C as a healthy convention.

(6) Appointment to the office of the Chief Justice of India should be
of the seniormost Judge of the Supreme Court considered fit to hold the
office.

D (7) The opinion of the Chief Justice of India has not mere primacy,
but is determinative in the matter of transfers of High Court judges/Chief
Justices.

(8) Consent of the transferred Judge/Chief Justice is not required for
E either the first of any subsequent transfer from one High Court to another.

(9) Any transfer made on the recommendation of the Chief Justice
of India is not to be deemed to be punitive, and such transfer is not
justiciable on any ground.

F (10) In m<;tking all appointments and transfers, the norms indicated
must be followed. However, the same do not confer any justiciable right in
any one.

(11) Only limited judicial review on the grounds specified earlier is
G available in matters of appointments and transfers.

(12) The initial appointment of Judge can be made to a High Court
other than that for which the proposal was initiated.

(13) Fixation of Judge-strength in the High Courts is justiciable, but
H only to the extent and in the manner indicated.
ADVOCATES ASSN. v. U.O.L(PANDIAN,J.] 779

(14) The majority opinion in S.P. Gupta v. Union of India, [1982] 2 A
S.C.R. 365, in so far as it takes the contrary view relating to primacy of the
role of the Chief Justice of India in matters of appointments and transfers,
and the justiciability of these matters as well as in relation to Judge-
strength, does not commend itself to us as being the correct view. The
relevant provisions of the Constitution, including the constitutional scheme B
must now be construed, understood and implemented in the manner
indicated herein by us.

This summary has to be read along with the earlier part, wherein the
conclusions are elaborately stated with reasons.
c
The above discussion answers the questions referred and disposes of
these matters, accordingly.

S. RATNAVEL PANDIAN, J. "Salmon's throne was supported by
lions on both sides; let them be lions, but yet lions under the throne; being
circumspect that they do not check or oppose any points of sovereignty." D
In terms of the above Biblical apologue in the old Testament as
coined by Francis Bacon in his 'Essay of Judicature', the vital questions
which are of great constitutional significance affecting the Indian Judicial
system that are posed for deep consideration can be figuratively formulated
thus: E

(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'? F

(3) Whether, the 'Lions' are circumspected from checking or
opposing any of the points of sovereignty of the judiciary (i.e.
judicial sovereignty)?
. G
(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' H
780 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A 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
B ignoring any suggestion of Solomon?

(7) Whether under the present scheme and procedure proscribed
and followed, 'Solomon' is made to sit on the chair of handicapped
sub-silentio instead of his own 'throne'?
c The questions that are symbolically referred to above are raised in
these two Writ Petitions and they are related to the functioning of the
superior judiciary, the primacy objects of which being to facilitate the
judiciary (a) to get rid of its suffocation caused by the excessive dominance
of the executive in the matter of appointment of Judges to the superior
D judiciary as well as in the formation of its structural composition; (b) to
give primacy - if not supremacy - to the opinion of the Chief Justice of
India (hereinafter referred to as 'CJI') in all the matters thereof and (C)
to enjoy normal breathing of the unpolluted air of judicial independence,
so that the indispensable independence and integrity of the judiciary are
E kept up, consistent with the letter and spirit of the Constitution and in tune
with the oath or affirmation made and subscribed, bearing 'allegiance to
the Constitution of India' and also are saved 'from the hardening of the
executive arteries'.

The reliefs sought for are to issue a mandamus to the Union of India
F (hereinafter referred to as the 'UOI') to fill the vacancies of Judges in the
Supreme Court and the several High Courts of the country and for some
ancillary orders/directions in regard to the main prayer.

Pursuant to the direction of a three-Judges Bench comprising Ran-
G ganath Misra, CJ, M.N. Venkatachaliah, J (as the learned Chief Justice
then was) and M.N. Punchhi, J dated 26th October 1990 made in a public
interest litigation under the caption Subhash Shanna and Others v. Union·
of India, (1990] Supp. 2 SCR 433, the present cases are placed on the
docket of this nine-Judges Bench to explore the following two important
topical questions formulated therein which are swirling around the basic
H issues as it has been felt by that Bench that the correctness of the ratio in
ADVOCATES ASSN. v. U.O.l. [P ANDIAN, J.] 781

S.P. Gupta and Others etc. etc. v. Union of India and Others etc. etc., [1982] A
2 SCR 365 on the status of the Chief Justice of India in the matter of
appointment of Judges to the higher echelons of judiciary for the efficient
functioning of the superior judicial system required re-consideration by a
larger Bench.

The relevant passage of the above Order reads thus : B

"Returning to the views of the majority, we may set out the views
of these learned Judges in the Judgrnent as to 'consultation' and
primacy of the position of the Chief Justice of India which would
in our opinion require reconsideration c
The questions on the basis of the above Order that arise for con-
sideration 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 D
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
Judge-strength in the High Courts are justiciable?
E
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 constitu-
tional 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. F

Even at this prefatory stage, we with greatest respect to the opinion
of the eminent Judges in Gupta's case and also mindful of the historical
importance of that decision venture to say that we do not proceed to
re-consider the basic issues in Gupta's case with any pre-conceived notion G
of back- pedaling those views already expressed but for meeting certain
challenges.

It will be grotesque if any such criticism is ever levelled against the
proposed reconsideration of the decision in question or any bad motive
attributed thereto. H
782 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A The Concept of reconsideration of legal proposition and judicial review.

The immediate but inevitable substantial questions that follow for
serious consideration are as to what are the essential conditions and
circumstances under which the Courts will be justified in undertaking the
task of reconsidering its earlier view, expressed on the inter-pretation of
B the Constitution or law, as the case may be and what are the guidelines for
such drastic course and what will be the legal effect that may flow from it.

Since this Court is the highest Co~rt of this land an its vitality is a
national imperative, the primary institutional task of this Court is, first to
C clearly under stand the true message that the Constitution intends to
convey, secondly to ascertain the 'original meaning' of that message in the
light of the constitutional provisions and thirdly to pronounce what the law
is in harmony with meaningful purpose, original intent and true spirit of
the Constitution; because only those pronouncements have to reflect the
enduring principle of constitutional law and policy. In the discharge or
D performance of these national duties, some controversies on the general
philosophy of the Constitution, many. novel issues and difficult problems
are likely to come up for deep consideration and also for reconsideration
when new challenges emerge.

E Besides, in the series of litigations involving constitutional questions,
the inevitable result of an avalanche of various judicial pronouncements
necessarily involves consideration of the constitutional provisions.

To combat and deal with all these controversies, issue and problems
which are always open for judicial interpretation, the Courts have to
F undertake an onerous mission in exploring the 'real intention' and 'original
meaning' of the Constitution beyond all obscurities and to expound the
principles underlying the philosophy of the Constitution and declare what
the Constitution speaks about and mandates.

The exploration of the new principles are essential in those areas no
G 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 nc l known to the court does not create
H any new right not known to the constitutional text or history but merely
ADVOCATES ASSN. v. U.O.I. [P ANDIAN, J.] 783

discovers and announces only the existing right so far hidden under the A
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.
B
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 liable to be rejected for more than one reason - firstly, some of the
current issues could not have been foreseen; secondly, others would not C
have been discussed and thirdly, still others may be left over as controver-
sial issues, i.e. termed as deferred issues with conflicting intentions. Beyond
these reasons, it is not easy or possible to decipher as to what were the
factors that influenced the mind of the framers at the time of framing the
constitution when it is juxtaposed to the present time. The inevitable truth D
is that law is not static and immutable but ever increasingly dynamic and
grows with the ongoing passage of time.

So it falls upon the superior Courts in large measure the respon-
sibility of exploring the ability and potential capacity of the Constitution
with a proper diagnostic insight of a new legal concept and making this E
flexible instrument serve the needs of the people of this great nation
without sacrificing its essential features and basic principles which lie at
the root of Indian democracy.However, in this process, our main objective
should be to make the Constitution quite understandable by stripping away
the mystique and enigma that permeate and surround it and by clearly p
focussing on the reality of the working of the constitutional system and
scheme so as to made the justice delivery system more effective and
resilient. Although frequent over-ruling of decfaion will made the law
uncertain the later decisions unpredictable and this Court would not
normally like to reopen the issues which are concluded, it is by now well
settled by a line of judicial pronouncements that it is emphatically the G
province and essential duty of the superior Courts to review or reconsider
its e·arlier decisions, if so warranted under compelling circumstances and
even to over-rule any questionable decision, either fully or partly, if it had
been erroneously held and that no decision enjoys absolute immunity from
judicial review or reconsideration on a fresh outlook of the constitutional H
784 SUPREME COURT REPORTS [1993) SUPP. 2S.C.R.

A or legal interpretation and in the light of the development of innovative
ideas, principles and perception grown along with the passage of time. This
power squarely and directly falls within the rubric of judicial review or
reconsideration.

In a recent Judgment in S. Nagaraj & Ors. etc.etc. v. State of Kar-
B nataka & Anr, 1993 (5) Judgment Today 27 to which one us (S. Ratnavel
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 prin-
ciple that justice is above all. It is exercised to remove the error
c 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
D 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
E
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
circumstances has been held to be sufficient ground to exercise
the power. Apart from Order XL Rule 1 of the Supreme Court
F Rules this Court has the inherent power to make such orders as
may be necessary in the interest of justice or to prevent the abuse
of process of Court. The Court is thus not precluded from recalling
or reviewing its own order if'it is satisfied that it is necessary to
do so for sake of justice."
G
In the same case, B.P. Jeevan Reddy, J. in his separate judgment has
stated thus :

"It is the duty of the Court to rectify, revise and recall its orders
as and when it is brought to its notice that certain of its orders
H were passed on a wrong or mistaken assumption of facts and that
ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 785

implementation of those orders would have serious consequences. A
An act of Court should prejudice non. "Of all these things respect-
ing which learned men dispute", said Cicero, " there is none more
important than clearly to understand that we are born for justice
and that right is founded not in opinion but in nature." This very
idea was echoed by James Madison (the Federalist No. 51 Page B
352). He said : "Justice is the end of Government. It is the end of
the Civil Society. It ever has been and ever will be pursued, until
it be obtained or until liberty be lost in the pursuit."

"I speak but once" in the sense that we declare the law once but never
for many moons to come, can never serve as a good policy at all times in C
the field of construction of law, because a Judge's opinion as to what the
law speaks about, does not always and under all circumstances elicit the
approval of his brethren as it may sometimes happen that the earlier Judge
might have been mistaken in law or has got lost in the maze of interpreta-
tion. Therefore, in exceptional and extraordinary compelling circumstances D
or under new set of conditions, the Court is on a fresh outlook and in the
light of the development of innovative ideas, principles and perception
gro>1-n along with the passage of time, obliged by legal and more force to
reconsider its earlier ruling or decision and if necessitated even to over-rule
or reverse the mistaken decision by the application of the 'principle of
retroactive invalidity'. Otherwise even the wrong judicial interpretation that E
the Constitution or law has received over decades will be holding the field
for ages to come without that wrong being corrected. Indeed, no historic
precedent and long term practice can supply a rule of unalterable decision.

Case laws, including many leading decisions of the Constitution F
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, G
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 H
786 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 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 section 100 much to say that the word 'pension'
B
admittedly understood in one sense in 1867, can today support
federal legislation based on a different understanding of 'pensions."

There is a remarkable development in this area in recent times due
to the dynamic judicial activism. Reference may be made to (1) The Bengal
C Immunity Company Limited v. The State of Bihar and others, [1955] 2 SCR
603, (2) Samsher Singh and Another v. State of Punjab, [1975] 1 SCR 814,
(3) Union of India v. Sankal Chand Himatlal Sheth and Anr., f1978] 1 SCR
423 at 483, (4) Delhi Transport Corporation v. D. T.C. Mazdoor Congress and
Others, [1991] Supp. 1 SCC 600, (:i) Subhash Shanna and Others v. Union
of India, [1990] Supp. 2 SCR 433, (6) Kihoto Hollohan v. Zachillhu & Ors.,
D [1992] Supp. 2 SCC 651, (7) Indra Sawhney and Others v. Union of India,
[1992] Supp. SCC 210 and (8) Union of India v. Tulsi Ram Patel, [1985]
Supp. 2 SCR 131, at pages 273 and 274.

In addition to the above, there are "some outstanding decisions of this
E Court which found certain constitutional amendments being yiolative of the
basic structure of the Constitution and consequently declared those
amendments void. Vide His Holiness Kesavananda Bharti Sripadagalavaru
v. State of Kera/a, [1973] Supp. SCR 1 decided by a Bench of 13-Judges
which over-ruled the proposition of law propounded in J.C. Golak Nath &
Ors. v. State o Punjab & Anr., [1967] 2 SCR 762.
F
See also (i) Waman Rao & Ors. etc etc. v. Union of India and Ors.,
[1981] 2 SCR 1, (2) Minerva Mills Ltd. & Ors. v. Union of India, [1981] 1
SCR 206, (3)Synthetics & Chemical Ltd. etc v. State of U.P. and Ors., [1989]
Supp. 1 SCR 623, (4) Secretary, Inigation Department, Government of Orissa
G and Others v. G.C. Roy and Anr., [1992] 1 SCC 508, (5) Raghunathrao >
.•
Ganpatrao v. Union of India, AIR (1993) SC 1267=1993 (1) JT 374, (6)
R.C. Poudyal v. Union of India, (1993) 1 Scale 489 ..

In Poudyal's case (supra) the majority view is thus:

H "In the interpretation of a constitutional document, "words are but
ADVOCATES ASSN. v. U.O.L [PA:-<DIAN, J.] 787

the framework of concepts and concepts may change more than A
words themselves". The significance of the change of the concepts
themselves 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 on account of our earnest inquisitiveness for healthy judiciary B
and love for justice, we shall probe the physiology of the judicial system
and strive to answer tliese 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 con- C
stitutional provisions is intended to ensure a fortress to protect the inde-
pendence of judiciary.

We shall presently narrate the chronology of events and the mass of
enthralling historical material including the opinion of some learned out- D
standing Judges here and elsewhere, eminent jurists and the Law Commis-
sions 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 E
1987) vide Subhash·Sharma's case (supra) it has been pellucidly observed
that the correctness of the majority view in Gupta's case require recon-
sideration by a larger nine-Judges Bench.

(2) Be it noted that even the majority in S.P. Gupta's case appears p
to have been not satisfied with what they perceived to be the constitutional
scheme of appointment of Judges, viz., that the ultimate power of selection
and appointment of Judges in the Supreme Court and High Courts rest
with the Central Government.

In fact, Bhagwati, J. (as the learned Chief Justice then was) who G
delivered the main judgment, while responding to the strident criticism that
the process of selection and methodology of appointment of Judges to the
superior judiciary by the Central Government has eroded the inde-
pendence of judiciary, has himself made some suggestions in the following
words: · H
788 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A "We would rather suggest that there must be a collegium to make
recommendation to the President in regard to appointment of a
Supreme Cpurt or High Court Judge. The recommending authority
should be more broad-based and there should be consultation
with wider interests. If the collegium is composed of persons who
are expected to have knowledge of the persons who may be fit for
B appointment on the Bench and of qualities required for appoint-
ment and this last requirement is absolutely essential - it would go
a long way towards securing the right kind of Judges, who would
be truly independent in the sense we have indicated above and
who would invest the judicial process with significance and mean-
c ing for the deprived and exploited sections of humanity. We may
point out that even countries like Australia and New Zealand have
veered round to the view that there should be a Judicial Commis-
sion for appointment of the high judiciary."

The _exposition of the above reform suggested an recommended in
D S.P. G_upta's case indicates that the learned Judges in that case were not
happy to hand over the authority exclusively to the executive - namely "the
right of choice" in the selection of candidates to the superior judiciary.

(3) Y.V. Chandrachud, J who presided over the Indian Judiciary for
E nearly 8 years as Chief Justice of India while inaugurating a seminar at
Patna on February 26, 1983 i.e. long after the decision in S.P. Gupta's case
·was handed down on December 30, 1981 admitted that the present proce-
dure for selection and appointment of Judges to the superior judiciary is
"outmoded" and should be "given a decent burial". In his view, the recom-
mendation by the suggested collegium would be far more credible and
F 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
G Report on "A new forum for Judicial appointments" while recommending
the establishment of a National Judicial Commission to serve as a consult-
ative 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 :

H "If the structure recommended herein is acceptable, it would
ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.] 789

necessitate amendment to the Constitution. The power to appoint A
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 Servise
Commission. To that extent, article 124 and article 217 will have
to be amended. Similarly article 233 and 234 will have to be
B
amended."

(5) It is quite appropriate, in this context, to recall what Dr. B.R.
Ambedkar said during the discussion about the problems, relating to
superior judiciary in the draft Constitution. It reads thus : C

"It seems to me, in the circumstances in which we live today, where
the sense of responsibility has not grown in the same extent which
we find in the United States, it would be dangerous to leave the
appointments to be made by the President, without any kind of
reservation or limitation, that is to say, merely'on the advice of the D
executive of the day. Similarly, it seems to me that to make every
appointment which executive wishes to made subject to the coucur-
rence of Legislature is also not a very suitable provision."

A number of alternative modes that are in existence in different parts E
of the globe were also suggested in this regard during the discussio1_1 of the
draft Constitution by various members for selecting the candidates to man
the superior judiciary.

(6) Even in several countries where the power of appointing Judges
exclusively and unquestionably vests with the executive, the introduction of F
was drastic reforms are felt necessary.

(i) In United Kingdom, recently opinions were expressed that there
must be an advisory body to assist the Lord Chancellor in the
matter of selection of personnel for appointment to higher G
judiciary.

(ii) In 1972, the Justice Sub-committee on the judiciary recom-
mended that while the Lord Chancellor should retain control of
the appointment machinery, he should be helped in his task by a
small Advisory Appointment Committee. H
790 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A (iii) The President of United States of America has established 'a
circut Judges Nominating Commission' to. recommend names of
the best qualified persons for appointment to the United States
Court of Appeal.

(iv) The nominee of the President of USA for appointment of a
B Judge of the Federal Court of USA has to appear before the
Senate Judiciary Committee for 'confirmation hearing' which
usually takes place for a few days ,and during which the nominee's
legal philosophy a"d his/her merit is exposed to the public. Then
the Senate Judiciar: ( ~ Jmmittee makes its recommendations for or
c against to Senate which tn turn approves or disapproves the can-
didates.

(v) The Chief Justice of Australia on being dissatisfied with the
Australian system for selection and appointment of Judges which
provides an opportunity for political influence, advocated in July
D 1977 that the time is now ripe for a Judicial Appointments Com-
mittee 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 ofAustralian
Judicature" 51 Aus. L.J. 480)
E
(vi) The Royal Commission (of Australia) on courts, chaired by
Justice Beattle, 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.
F
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.
G (7) The Constitution (Sixty-seventh Amendment) Bill, 1990 (Bill No.
of 1990 was introduced in Lok Sabha (Praliament) on 18.5.1990, empower-
ing 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 Supreme Court (other than the Chief Justice
H of India), a Chief Justice of the High Court and as to the transfer of a ·
ADVOCATES ASSN. v. U.0.1. (PANDIAN, J.] 791

Judge from one High Court to any other High Court and the said Com- A
mission was i.o consist of the Chief Justice of India who was to be the
chairperson of the Commission and two other Judges of the Supreme Court
next to the Chief Justice in seniority and for making recommendation as
to the appointment of a Judge of any High Court, the Commission was to
consist of the CJI, as chairperson of the Commission, the Chief Minister B
of the concerned State or if a proclamation under Article 356 is in opera-
tion in that State, the Governor of the state, one more senio~ most Judge
of the Supreme Court, the Chief Justice of the High Court and one other
senior most Judge of that High Court.

The 'Statement of objects and Reason' declared that the Commission C
to be set up was "to obviate the ::riticisms of arbitrariness on the part of
the Executive in such appointments and transfers and also to make such .
appointments without any delay." The proposed amendment to the Con-
stitution by inserting a new Part XIII A evidently was in view of the
recommendations made by the Law Commission of India in its 121st
Report, emphasising the need for a change in the system. By the Amend- D
ment Bill, certain amendments were to be brought to Articles 124 (2), 217
(1), 222 (1) and 231 (2) (a) to implement the recommendations of the
National Judicial Commjssion.

The texture and tone of the amendment and the Statement of Objects E
and Reasons are in tune with the recommendations of the eminent Judges
of this Court, jurists, Bar Associations, outstanding lawyers, Law Commis-
sions and various Committees for improving the situation in the matter of
the appointment of Judges on the diagnosis made by them.

When the referral order was passed on 26.10.1990 by this Court, F
hoping that the proposed amendment to the Constitution will relieve the
grievance long felt by the judiciary in the matter of selection of proper and
fit personnel and their appointment to the superior judiciary, the Constitu-
tion Amendment Bill pending before the Parliament. It was only having
regard to the said Bill, this Court stated in para 50 of its judgment in G
Subhash Shanna's case (supra) thus :

"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 the view of the fact that by the H
792 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Amendment the Chief Justice of India would become the Chainnan
of the Commission. In case the Commission is not constituted, the
two que~tions 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
B above may be taken up for hearing at an early date and preferably
before the ending of this year."

(emphasis supplied)

C 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
D Bill.

It was only in the above brief historical recapitulation including the
opinion of the experienced Judges and jurists etc. etc. and the compelling
necessity, we now in the eleventh hour, boldly set ourselves with renewed
energy to the task of reconsidering the decision in Gupta's case on a proper
E and just interpretation of the relevant constitutional provisions and
definitely not on an imaginative re-interpretation and to explore the situa-
tion as to whether the needed change could be made by ourselves rather
than by legislative process by entering into the realm of the original
intention of the Constitution thereby undoubtedly ensuring a palladium to
F protect the independence of judiciary from being violated or impaired or
damage. Otherwise we apprehend that strikingly disastrous and calamitous
results would follow in the proper functioning of the judiciary and that the
system itself would become dysfunctional.

A battery of eminent senior counsel, M/s D.S. Nariman, Ram Jeth-
G malani, Kapil Sibal, P.P. Rao and Shanti Bhushan consistently articulated
demanding reconsideration of the decision in Gupta's case and expanded
their argument by enlightening the various constitutional provisions with
their extensive·scholarly knowledge. According to them beneath the surface
of the ruling in Gupta, lie more fundamental questions concerning the role
H of the CJI in the area of selection and appointment of Judges to the
ADVOCATES ASSN. v. U.O.I. [P AND IAN, J.] 793

superior judiciary as well as transfer of judges from the High Court to A
another and fixation of strength of Judges. After making an extensive
analysis of the present procedure followed, it has been seriously contended
that the absolute 'right of primacy' and 'freedom of choice' in the field of
selection and appointment of Judges now exclusively vested with one of
the major constitutional functionaries, namely the Executive - that too with B
the judicial stamp of approval of this Court in Gupta, normally ends up
with the excessive politicalization of the constitutional process which resul-
tantly cause great harm to the institution and erodes the very foundation
of constitutionalism and the 'Rule of Law'. In continuation of their submis-
sion, it has been contended that on account of the methodology in vogue, C
the very precious constitutional rights are at stake and need breathing
space to survive' and that a prophylactic prohibition on all intrusions of
this sort is, therefore, essential.

All the counsel eloquently raise a debatable question as to how any
coarctation be imposed on the authority of judiciary and the independence D
of judiciary being kept in pensileness, when the Constitution itself recog-
nises 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.
E
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 CJI
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
F
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.

Mr. Parasaran the learned senior counsel appearing for the opinion G
of India and the learned Attorney General offering his valuable assistance
to the Court on notice, with their sound knowledge of constitutional law
and intellectual capabilities denounced the submissions made on behalf of
th petitioners, stating that in utter disregard of the intent of the framers of
the Constitution, all the counsel seeking reconsideration of Gupta's case H
794 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A are making a futile attempt to undo and unsettle the well reasoned prin-
ciples enunciated in Gupta's case by imposing their personal values and
reading their personal philosophy into the Constitution under the guise o(
'original intent' of the Constitution and that the tenor of their argument
was tainted with visible hostility indicating their predetermination to
B recochet the views in Gupta by assigning an invented legalistic nod by
wrongly construing the constitutional provisions and drawing strained in- ,..
ferences.

Illuminating every aspect of the vital issue involved. Mr. Parasaran
furthers his argument saying that the plea of primacy to the opinion of the
C OI had oeen discussed threadbare and ultimately discarded by the Con-
stituent Assembly and despite this, the Court in Gupta indeed tended to
emphasise the primacy of OI, even if not express language and that,
therefore, the principles laid down in Gupta which are holding the field till
date and successfully and satisfactorily working in the area of making
D appointment of judges in no way call for any interference or radical change.
According to him, the present constitutional scheme which was evolved by
the framers of the Constitution after taking into consideration the legisla-
tive history, Constituent Assembly debates and various modes of appoint-
ments in different countries - particularly U.K and U.S.A. wherein the
E executive alone enjoys the authority in making appointments is basically
sound.

Drawing our attention to various relevant constitutional provisions,
it has been contended that the independence of judiciary is well protected.
F According to him, the submission made by the other side on the basis of
Article 50 is not well found and that the Constitution does not even
remotely suggest the exclusion of the role of executive, in the matter of
appointment of Judges to the superior Courts.

The learned Attorney General in addition to his general submission
G urged that the opinion of the OI had received the utmost acceptance in
the actual working of the system except on one occasion during the last
decade, and undue delay, if any, in making the appointment of Judges, can
be rectified and remedied by issue of mandamus to the appointing con-
stitutional functionary and ultimately requested acceptance of the view of
H Pathak, J (as the learned Chief Justice then was) in Gupta's case.
ADVOCATES ASSN. v. U.0.1.(PANDIAN,J.] 795

Among the various States which made their appearance on notice A
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 CTI and also appointment of B
a National Judicial Commission.

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 C
any infirmity.

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 vast and rich practical experience and analys-
ing various provisions under separate heads in the light of the well recog- D
nised concept of jurisprudence that the appointment must not be a
manifestation of an absolute power in the executive but of the power to
appoint with due consideration of the expert opinions, sought through
effective consultation with CTI and CT of the concerned High Court, that
the opinion of the CTI must have primacy in the event of any unfortunate,
piquant and undesirable, situation leading to difference of opinion among · E
three constitutional functionaries and that the decision in Gupta is bad law
so far as it gives the appointing power to the executive ignoring the
recommendation of CTI and Chief Justice of High Courts. The learned
counsel also supports the view of Pathak, J in Gupta as being a balanced
view and more acceptable.
F
Apart from the above arguments, some more written submissions
were filed, i.e. by the Sub Committee of judicial Accountability, by Mr.
Prashant Bhushan, and the Delhi High Court Bar Associatipn.

At the outset, we make it clear that we are no called upon to deal G
with any specific case, but to broadly lay down only the important prin-
ciples and the general controversial problems involved.

We shall now unbiasedly proceed to judiciously examine the above
highly sensitive issue involving constitutional importance without being
influenced either by emotional and sentimental aspects or hostility or by H
796 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A the dazzling eloquence of the counsel putting forth their rival arguments
in support of their conflicting views and without any passion or prejudice.

Since the entire arguments were advanced mainly on the principle of
independence of judiciary, we shall disposed that question at the foremost.

B Mr. Parasaran, elaborated his argument; submitting that the presi-
dent, being the Constitutional head of the three major Constitutional
functionaries makes the appointment of Judges to the Supreme Court and
the High Courts on the aid and advice of the Council of Ministers with the
Prime Minister at the head as contemplated under Article 124(2) read with
C 74 {1) and 217 (1) read with 74 (1) of the Constitution of India as the case
may be; that in that process it is only the executive which plays an important
role but the CJI is only a consultee and that the independence of judiciary
is in no way impaired by executive action but on the other hand it is firmly
secured by various specific provisions, expressly articulated in the Constitu-
tion along with the extraordinary power of Judicial review. They are :
D
(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)
E
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).

F {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.
G
(c) Every Judge of the Supreme Court or a High Court is entitled
to such privileges, allowances, and to such rights in respect of leave
of absence and pension as determined by and under law, made by
the Parliament and they shall not be varied to his disadvantage
H after his appointment as guaranteed by Articles 125 (2) and 221
ADVOCATES ASSN. v. U.0.L [PANDIAN,J.] 797

(2). A
(d) The salaries, allowances and pensions payable to the Judges
of the Supreme Court are charged on the Consolidated Fund of
India as mandated by Article 112 (3) (d) (i). In the case of a High
Court Judge the expenditure in respect of the salaries and allowan-
ces are charged on the Consolidated Fund on each State as B
mandated by Article 202 (3) (d) but the pensions payable to the
High Court Judges are charged on the Consolidated Fund of India
according to Article 112 (3) (d) (iii) of the Constitution.

The expenditure so charged on the Consolidated Fund of India C
shall not be submitted to the vote of Parliament though nothing
prevents the discussion in either House of Parliament of any those
estimates (vide Article 113 (1)). Similarly_ the expenditure charged
on the Consolidated Fund of a State shall not be submitted to the
vote of Legislative Assembly, but nothing prevents the discussion
in the Legislature of any of those estimates (vide Article 203 (1)). D

(e) A Judge of the Supreme Court or a High Court cannot be
removed from his office except by an order of the President passed
after an address by each House of Parliament supported by a
majority of the total membership of that House and by a majority E
of not less than two-thirds of the members of that House present
and voting has been presented to the President in the same session
for such removal on the· ground of proved misbehaviour or in-
capacity.

The above procedure for removal of a Judge is embodied in F
Article 124 (4) as regards the Supreme Court Judges and in proviso
(b) to Article 217 (1) read with Article 124 (4) as regards the High
Court Judgf?s. In other words, the same procedure mutatis mutan-
dis apply to the High Court Judges.

(f) No discussion shall take place in Parliament with respect to the G
conduct of any Judge of the Supreme court or High Court in the
discharge of his duties except upon a motion before the Parliament
but not in the legislature of a State for presenting an address to
the President praying for the removal of the Judge as provided in
the Constitution (vide Articles 121 and 211). H
798 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A (g) Both the Supreme Court and every High Court are Courts 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).

B (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 con-
c nection 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
D 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
E
Others, (1991) 4 SCC 699 That even in relation to proceedings for
impeachment of a Judge, there is an area of judicial review.

After listing out the Constitutional rights and privileges of the Judges
vis-a-vis the other Constitutional appointments namely the Comptroller
F and Auditor General of India and the Chief Election Commissioner (vide
Article 148 and proviso to Article 324 (5) as regards the security of tenure
of office, irremovability from the office and ensuring of the conditions of
service Mr. Parasaran reaffirms his earlier submissions that the elimination
of executive action in the process of appointment is not all necessary to
secure judicial independence. Relying on the rule in Re the Special Courts
.G Bill, (1979) 2 SCR 476 he has urged that the 'pleasure doctrine' which is
subversive of judicial independence is neither attracted nor applicable in
the matter of removal of Judges of Supreme Court except as provided for
under Article 124(4) and High Court Judges except as provided for under
proviso (b) to Article 217 (2) read with Article 124(4) and added that this
H safeguard vouchsafes the judicial independence.
ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.) 799

By way of supplementing the argument of Mr. Parasaran, it has been A
urged on behalf of some State Governments on a few tautological reason-
ings that when the pronouncement of this Court is to be accepted as the
final verdict binding all including the other primary Constitutional
functionaries, unless it is so plainly erroneous in the light of subsequent
consideration, the decision in Gupta's case in which the principle of
B
.. independence of judiciary is exhaustively considered and correctly decided,
does not require to be taken to the legal smithy for either mending or
tinkering with the view, already, already declared. According to them, the
existing Constitutional protective conditions attached to the judicial office
are more than sufficient to preserve the independence of the judiciary.
c
During the supplementary submission, much reliance was placed on
the views of Desai, J in his separate judgment in Gupta's case holding :

"Independence of judiciary under the Constitution has to be inter-
preted which in the framework and the parameters of the Con-
stitution. There are various provisions in the Constitution which D
indicate that the Constitution has not provided something like a
'hands off attitude' to the judiciary."

Quoting the various procedure in vogue in different parts of the
globe - particularly in U.S.A. and U.K. - wherein the executive is exclusively E
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. Th~y were pas-
sionate in quoting some supporting passages of their view from various text F
books on the formation of judicial system in those countries.

The above arguments, that the independence· of judiciary is satisfac-
torily secured by the Constitutional safeguard of the office that a Judge
holds and guarantees of the service conditions alone and not beyond that, G
are in our considered opinion, unable. In fact we are unable even to
conceive such an argument for the reason to be presently stated.

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

A the people are greatly influenced by adjudicative dispensation of justice by
the presiding impartial Judges" without fear or favour, affection or ill-will",
can it be rightly said that the assurance of the immutable rights and
privileges in respect of service conditions alone are sufficient to achieve
the independence of judiciary and to protect it from being impaired and
B no other condition is required ? Our answer to this nagging question would
be in the negative.

No doubt true, that the Constitutional assurances, relating to the
basic service conditions are absolutely necessary to protect the inde-
pendence of the judiciary but in our view they are not the be all and end
C all. More than the above, one other basic and inseparable vital condition
is absolutely necessary for timely securing the independence of judiciary;
that concerns the methodology, followed in the matter of sponsoring,
selecting and appointing a proper and fit candidate to the (Supreme Court
or High Court) higher judiciary. The holistic condition is a major com-
ponent goes along with other constitutionally guaranteed service conditions
D in securing a complete independence of judiciary. To say differently, a
healthy independent jndiciary can be said to have been firstly secured by
accomplishment of the increasingly important condition in regard to the
method of appointment of Judges and, secondly, protected by the fullfil-
ment of the rights, privileges and other service conditions. The resultant
E inescapable conclusion is that only the consummation or totalty of all the
requisite conditions beginning with the method and strategy of selection
and appointment of Judges will secure and protect the independence of
the judiciary. Otherwise, not only will the credibility of the judiciary stagger
and decline but also the entire judicial system will explode which in turn
F may cripple the proper functioning of democracy and the philosophy of
this cherished concept will be only a myth rather than reality.

The essence of the above deliberation and discussion is that the
independence of judiciary is the livewire of our judicial system and if that
wire is snapped, the 'dooms day' of judiciary will not be far off.
G Concept of Independence of the Judiciary

Faced with the unpleasant reality of the present system in vogue, we
shall examine what the concept of independence of judiciary means in the
background of the breathtaking and cascading argument, advanced by both
H the parties, of course with the motive of invigorating the judicial system
ADVOCATESASSN. v. U.0.1.[PAND!AN,J.j 801

and emphasizing the importance of its various aspects which is absolutely A
indispensable for ensuring the 'Rule of Law', as adumberated by the
Constitution.

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: B
Justice, Social Economic and Political.

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 C
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 Constitution." To say differently, it is the cardinal principle of the D
Constitution that an independent judiciary is the most essential charac-
teristic of a free society like ours.

Having regard to the importance of this concept the framers of our
Constitution having before them the views of the Federal Court and of the
E
High Court have said in a memorandum:

"We have assumed that it is recognised on all hands that the
independence and integrity of the judiciary in a democratic system
of government is of the highest importance and interest not only
to the judges but to the citizens at large who may have to seek F
redress in the last resort in courts of law against any illegal acts or
the high-handed exercise of power by the executive .............. in
making the following proposals and suggestions, the paramount
importance of securing the fearless functioning of an independence
and efficient judiciary has been ste&dily kept in view. Vide The G
Framing of India's Constitution Volume IB Page 196 by B. Shiva
Rao.

In this context, we may make it clear by borrowing the inimitable
words of Justice Krishna Iyer, "Independence of the Judiciary is not
genuflexion, nor is it opposition of Government". Vide Mainstream - H
802 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A November 22, 1980 and at one point of time Justice Krishna Iyer charac-
terised this concept as a "Constitutional Religion".

Indisputably, this concept of independence of judiciary which is
inextricably linked and connected with the constitutional process related
to the functioning of judiciary is a "fixed-star" in our constitutional consult-
B ation and its voice centers round the philosophy of the Constitution. The
basic postulate of this concept is to have a more effective judicial system
with ·its full vigour and vitality so as to se,cure and strengthen the imperative
confidence of the people in the administration of justice. It is only with the
object of successfully achieving this principle and salvaging much of the
C problems concerning the present judicial system, it is inter-alia, contended
that in the matter of-appointment of Judges to the High Courts and
Supreme Court 'primacy' to the opinion of the CJ! which is only a facet of
this concept, should be accorded so that the independence of judiciary is
firmly secured and protected and the hyperbolic executive intrusion to
impose its own selectee on the superior judiciary is effectively controlled
D and curbed.

Regarding the significance of this principle, Chandrachud, J. (as the
learned Chief Justice then was) in Union of India v. Sankal Chand Himatlal --
Sheth & Anr., [1978] 1 SCR 423, said that the independence of judiciary is
E 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 constitu-
tional guarantees to safeguard the independence of judiciary.

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
F Chand Himatlal Sheth & Anr., (supra) observed:

"................ the independence of judiciary is a fighting faith of our
Constitution. Fearless justice is a cardinal creed of our founding
document .......................... .
G Justice, as pointed out by this Court in Shamsher Singh v. State of
Punjab, (1975] 1 SCR 814, can become "fearless and free only if
institutional immunity and autonomy are guaranteed."

Again Bhagwati, J in Gupta's case has said in paras 223- 224 as
H follows:
ADVOCATES ASSN. v. U.0.1. [P ANDIAN, J.] 803

"The concept of independence of judiciary is a noble concept which A
inspires the constitutional scheme and constitutes the foundation
on which rests the edifice of our democratic polity. If there is one
principle which runs through the entire fabric of the Constitution,
it is the principle of the rule of law and under the Constitution, it
is the judiciary which is entrusted with the task of keeping every B
organ of the state within the limits of the law and thereby making
the rule of law meaningful and effective.

But it is necessary to remind ourselves that the concept of inde- C
pendence of the judiciary is not limited only to independence from
executive pressure or influence that it is a much wider concept
which takes within its weep, independence from many other pres-
sures and prejudices.

···················································································································· D
Judges should be of stern stuff and tough fibre, 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 E
democracy, maintenance of the rule of law as dynamic concept and
delivery of social justice to the vulnerable sections of the com-
munity. It is this principle of independence of the judiciary which
we must keep in mind while interpreting the relevant provisions of
the Constitution." F
Fazal Ali, J in his judgment in Gupta's case in para 320 has held :

"....... that independence of judiciary is doubtless a basic structure
of the Constitution but the said concept of independence has to
be confined within the four corners of the Constitution and cannot G
be beyond the Constitution."

Tulzapurkar, J in para 634 of his judgment in Gupta's case has
pointed out :

"Such a literal construction is difficult to accept because no H
804 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A provision of the Constitution can be interpreted in a manner which
will be in conflict with any of the basic features of the Constitution
and the cardinal principle of independence of judiciary is one such
basic feature; therefore, the construction to be put on the phrase
in the article must be consistent with the said principle."

B Venkataramih, J (as the learned Chief Justice then was) in the same
case did not go so far but observed that it is "one of the central values on
which our Constitution is based." Vide para 1051.

See also (1) Union of India v. J.P. Mitter, (1971) 3 SCR 483; (2)
C Sub-Committee on Judicial Accountability v. Union of India, (supra) and (3)
Shri Kumar Padmapra sad v. Union of India, (1992) 2 SCC 428.

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
D all challenges, unbending before all authorities and to uphold the impera-
tives Gf the Constitution at all times, thereby preserving the judicial in-
tegrity, the person to the elevated to the judiciary must be possessed with
the highest reputation for independence, uncommitted to any prior inter-
est, loyalty and obligation and prepared under all circumstances or even-
E tuality 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 inde-
pendence of judiciary cannot be secured notwithstanding the guaranteed
tenure of office, rights and privileges, safeguards, conditions of service and
F immunity. Though it is illogical to spin out a new principle that. the key
note is not the Judge but the judiciary especially when it is accepted in the
same breath that an erroneous appointment of an unsuitable persons is
bound to produce irreparable damage to the faith of the community in the
administration of justice and to inflict serious injury to the public interest
G and that the necessity for maintaining independence of judiciary is to
ensure a fair and effective administration of justice. Further, if this prized
concept is injured or maimed even from inside by self-infliction, the
invaluable judicial independence will be devalued and debased.

The above fallacious principle receives a fitting reply from the 14th
H Report of the Law Commission 73 in which the follo\ving opinion of a High
ADVOCATES ASSN. 1•. U.0.1. [PANDIAN, J.] 805

Court Judge is quoted : A
"If the State Ministry (Minister in the State Government) continues
to have a powerful voice in the matter, in my opinion, in ten years'
time, or so, when the last of Judges appointed under the old system
will have disappeared, the independence of the judiciary will have
disappeared and the High Courts will be filled with Judges who B
owe their appointments to politicians.".

Shri M.C. Setalvad, who was a most distinguished jurist and Attorney
General and known for his impeccable integrity and sturdy independence
antl who presided over the 14th Law Commission had painfully stated in C
his Report that the Commission, during its visits to all the High Court
Centres, heard 'bitter and revealing criticism about the appointment of
Judges' and that 'the almost universal chorus of comment is that the
selections are unsatisfactory and that they have been inducted by executive
influence.
D
Mr. Ram J ethamalani, senior counsel after pointing out certain infir-
mities in Gupta's case to demonstrate the baneful effects on public welfare
of a practice of appointment, sanctified by it forcibly stated that the creed
of judicial independence in our constitutional religion and the executive
continue to imperil this basic tenet and quoted the word of Krishna Iyer, E
J. form the judgment in Sankal Chand (supra) reading "This Court must
'do or die'".

In Bradly v. Fisher, 80 US 335 (1871) it was said :

"Our judicial system is guided by the principle that a judicial F
officer, in exercising the authority vested in him must be free to
act upon his own connections, without apprehension of personal
consequences to him self."

As Dr. Robert Mac Gregor Dawason has pointed out that "the Judge
must be· independent of most of the restraints, checks and punishments G
which are usually called into play against other public officers .......... " and
he should be "devoted to the conscientious performance of his duties."

In Subhash Shanna (supra), it has been rightly observed "for Rule of
Law to prevail, judicial independence is of prime necessity." H
806 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A As we are 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.
B
Separation of Judiciary from executive

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
C to the Supreme Court and High Courts especially in the context of inde-
pendence of judiciary. We shall now consider the independence of
judiciary vis-a-vis separation of power.

According to Mr. Jethamalani Gupta's case paid no attention or
D certainly not adequate attention to the mandate of Article 50 and its
implications and effect on the interpretation of Article 124 and 217 and
also over-looked the impact of Article 51 (A) and that Article 50 is the
culmination of a long drawn out movement and struggle for judicial inde-
pendence. In support of this contention, our attention was drawn to the
E report of a Commission appointed in 1946 in Bombay consisting of eleven
members, headed by a Judge of the Bombay High Court in which the
unanimous conclusion, recorded was that the separation of judi..:ial and
executive functions was a feasible and practical proposition.

By way of meeting the above contention, Mr. Parasaran has stated
F that .the reference to Article 50 in the context of the independence of the
judiciary relating to appointment of Judges to Supreme Court and High
Courts is not appropriate; but it is only in the context of District and
Subordinate Magistrates exercising both executive and judicial functions;
to say in other words, the principle is that the same person should not be
G a member of both executive and judiciary. In support of his contention, he
draws inspiration from (1) a passage found in 'Constitutional Law', Eighth
Edition by E.C.S. Wade and A.W. Bradley, under the heading "Meaning
of Separation of Powers" reading that "one organ of Government should
not control or interfere with the exercise of its function by another organ";
H (2) the Constituent Assembly Debates relating to Draft Article 39-A; (3)
ADVOCATESASSN. v. U.0.1.[PANDIAN,J.) 807

"The Framing of Indian Constitution - A Study" by B. Shiva Rao (page 507) A
and; (4) a passage in "Encyclopedia of American Constitution, 1986 Edi-
tion Vol. IV - Union of India Compilation Page 185 (B) under the heading
"Separation of powers" reading thus:

"The doctrine of the separation of powers consists of a number of
elements; the idea of three separate branches of government, the B
legislature, the executive and the judiciary; the belief that. there
are unique functions appropriate to each branch of the government
should be kept distinct, no one person being able to be a member
of more than one branch of government at the same time."
c
For properly appreciating the above rival contentions and under-
standing the implication of Article 50, we shall first of all go to its historical ·
background.

Article 50 appears in para IV dealing with "Directive Principles of
State policy'' under the heading 'separation of Judiciary from Executive' D
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"
E
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 F
separation of the judiciary from the executive in the public services
of the State."

The Drafting Committee in the amendment purposely had used the
expression 'complete separation of the judiciary etc.'; the Special Commit- G
tee, however, considered that the word 'complete' was unnecessary, and
this word has accordingly been omitted.

Thereafter, the time limit of three years within which this directive
was to be implemented was omitted at the final stage and Article 39-A
became Article 50 in the present from. H
808 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A During the Constituent Assembly Debates on Article 39-A, one of
the members, Shri R.K. Sidwa on 25th November 1948 made the following
pertinent observation :

"As Dr. Ambedkar stated yesterday, ever since its inception the
Congress has been stating that these two functions must be
B separated if you really want impartial justice to be done to the
accused persons.

The arguments advanced yesterday were that in Free India the
conditions have changed and that therefore, it is not desirable that
c these two functions should be separated. The real secret, so far as
I know, of those who advocate retaining the same position is that
they want to retain their power. If the Honourable Ministers of
the provincial Governments feel that these two should not be
separated, it is because they feel the power of appointments which
is in their patronage, would go away from them to the High Court
D Judges."

The above speech of Shri Sidwa makes it clear that implementation
of Article 50 involves as a necessary consequence the power of appoint-
ment being taken away from the Executive and its transference to the
. E Judiciary. Article 50 being one of the fundamental principles of governance
of the country and constitutionally binding on the government, the latter is
obviously obliged voluntarily to refrain from any interference in judicial
appointments and reduce its role to one which is purely formal or
ceremonial, ensuring that the decisive factor is the wish and will of the
judicial family.
F
Prime Minister Jawaharlal Nehru reacted to this on behalf of the
Government and declared :

"I may say straight off that so far as the Government is concerned,
it is entirely in favour of the separation of the judicial and executive
G functions. I may further say that the sooner it is brought about the
better."

Realising the significance of the independence of judiciary and in
order to give a full life to that concept, the founding fathers of our
H Constitution, felt the need of separation of judiciary from executive and
ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.] 809

designedly inserted Article 50 in the Constitution after a heated debate; A
because the judiciary under our constitutional scheme has to take up a
positive and creative function in securing socio-economic justice to the
people.

Bhagwati, J (as the. learned Chief Justice then was) in Sankal Chand
(supra) after quoting various constitutional provisions, speaking about the B
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 proV1s1ons like a brooding om- C
nipresence 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 D
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."

Chandrachud, J (as the learned Chief Justice then was) speaking for E
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
. 50 stating, "Article 50 of the Constitution which contains a Directive
Principle of State Policy, provides that the State shall take steps to separate
the judiciary from the executive in the public services of the State. F

In M.M. Gupta and Others v. State of Jammu and Kashmir, [1982] 3
SCC 412, A.N. Sen, Jin his separate judgment speaking for himself and on
behalf of Bhagwati, J observed thus:

"Various Articles in our Constitution contain the relevant G
provisions for safeguarding the independence of the judiciary.
Article 50 of the Constitution which lays down that "the State shall
take steps to separate the judiciary from the executive in the public
services of the State," postulates separation of the judiciary from
the executive." H
810 SUPREME COURT REPORTS [1993] SUPP. 2S.C.R.

A In Gupta's case, Bhagwati, J who spoke for the majority has not made
reference to Article 50 though he did refer to that Article in Sankal Chand.

From the above deliberation, it is clear that Article 50 was referred
to in various decisions by the eminent Judges of this Court while discussing
the principle of independence of the judiciary. We may cite Article 36
B which falls under Chapter IV (Directive principles of State Policy) and
whkh read thus :

"Art. 36 - In this Part, unless the context otherwise requires, "the
State" has the same meaning as in Part III."
c According to this Article, the definition of the expression "the State"
in Article 12 shall apply throughout Part IV, wherever that word is used.
Therefore, it follows that the expression "the State" used in Article 50 has
to be construed in the distributive sense as including the Government and
Parliament of India and the Government and the Legislature of each State
D and all local or other authorities within the territory of India or under the
control of the Government of India. When the concept of separation of the
judiciary from the executive is assayed and assessed that concept cannot
be confined only to the subordinate judiciary, totally discarding the higher
judiciary. If such a narrow and pedantic or syllogistic approach is made
E and a constricted construction is given, it would lead to an analamous
position that the Constitution does not emphasise the separation of higher
judiciary from the executive. Indeed, the distinguished Judges of this Court,
as pointed out earlier, in various decisions have referred to Article 50 while
discussing the concept of independence of higher or superior judiciary and
thereby highlighted and laid stress on the basic principle and values under-
F lying Article 50 in safeguarding the independence of the judiciary.

The Power of appointment of Judges and the primacy to the opinion
of the CJ! thereof

The key and substantial questions that spring up for deep considera-
G tion 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
H the power of appointment of Judges vested in the constitutional
ADVOCATESASSN. v. U.O.I.[PANDIAN,J.] 811

fanctionaries is unfettered and uncircurnscribed; .and fifthly, whether the A
opinion expressed by the CJI who is one of the three principal constitu-
tional functionaries during the mandatory consultation required by the
Constitution has primacy over the opinion of the other constitutional
functionaries ?

In a democr~tic polity, the supreme power of the State is shared
B
among the three principle organs - constitutional functionaries , namely,
the legislature, the executive and the judiciary. Each of the functionaries is
independent and supreme within its allotted sphere and none is superior
to the other. As pointed out in Subhash Shanna (supra), justice has to be
administered through the Courts and such administration would relate to c
social, economic and political aspects of justice as stipulated in the
preamble of the Constitution and the judiciary, therefore, becomes the
most prominent and outstanding wing of the constit.utional system for
fulfilling the mand~te of the Constitution.
D
The constitutional task assigned to the judiciary is in no way less than
that of other functionaries - legislature and executive. Indeed, it is the role
of the judiciary in carrying out the constitutional message, and it is its
responsibility to keep a vigilant watch over the functioning of democracy
in accordance with the dictates, directives and imperative commands of the
Constitution by checking excessive authority of other constitutional E
functionaries beyond the ken of the Constitution. In that sense, the
judiciary has to act as a sentinel on the qui vive.

Regrettably, there are some intractable problems concerned with
judicial administration starting from the initial stage of selection of Can- F
didates to man the Supreme Court and the High Courts leading to the
present malaise. Therefore, it has become inevitable that effective steps
have to be taken to improve or retrieve the situation. After taking note of
these problems and realising the devastating consequences that may flow,
one cannot be a silent spectator or an old inveterate optimist, looking upon
the other constitutional functionaries, particularly the executive, in fond G
hope of getting invigorative solutions to make the justice delivery system
more effective and resilient to meet the contemporary needs of the society,
which hopes, as experience shows, has never been successful. Therefore,
faced with such a piquant situation, it has become imperative for us to solve
there problems within the constitutional fabric by interpreting the various H
812 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A provisions of the Constitution relating to the functioning of the judiciary in
the light of the letter and spirit of the Constitution.

We, before• starting with these onerous task, would like to make it
clear that it is not an attempt to get the judiciary locked up in a power
struggle either for social aristocracy or judicial imperialism of its· own or
B 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 CTI 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
C judiciary showing his keen insight into the practical problems of the judicial
system from beginning to end. In fact, the CTI has pride of place in the
Constitution.

In the backdrop of the above important role given to the judiciary
D and the obligation of the CTI as required under Articles 124(2) and 217(1)
of the Constitution we shall examine the various questions which are posed
for deep consideration.

The Indian judicial system being pyramidic in character is an in-
tegrated one in contradistinction to the dual system of USA and Australia.
E Our judicial system is vertically structured with this Court (Supreme Court)
at the apex with the intervening layers consisting of subordinate judiciary
at the grassroots lever, district Judge at the middle level and the High
Court at the State level.

p We shall presently give a brief note of the appointment of Judges in
the pre and post Constitution era with reference to the concerned
provisions of the then existing Act and the present Constitution which
throw considerable light on the discussion that we proposed to undertake.

Appointment of Judges under the Government of India Act, 1919
G
There is a long evolution of the method of appointment of Judges of
the superior judiciary in India. The process of Indianisation of Judiciary
was in the offing and ground norms were laid for the same in the Govern-
ment of India Act of 1919. Section 101 of that Act conferred the authority
H to appoint a Judge of a High Court on His Majesty. Sub-section (3) of
ADVOCATESASSN. v. U.O.L[PANDIAN,J.) 813

Section 101 set out the qualifications of a person for being appointed as a A
Judge of the High Court. Some of the qualification clauses of that Section
opened up a possibility of Indians being appointed as High Court Judges
with concept of quota reservation.

Appointment of Judges under the Government of India Act, 1935
B
Under the Government of India Act, 1935, sub-section (2) of Section
200 which dealt with appointment of Federal Court Judges provided that
"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 year". The High court Judges were also appointed in C
the same manner under sub-section (2) of Section 220 of the Act of 1935
but the tenure of office was upto the age of sixty years.

It was only after considerable discussion and debate in the Con-
stituent Assembly and in the various Committees which were appointed in
connection with the appointment of Judges and other allied matters, the D
present provisions - viz. Article 124 (regarding appointment of Judges to
Supreme Court) and 217 (regarding appointment of Judges to the High
Courts) were incorporated in the Constitution. (It may be pointed out in
this context that one of the suggestions made in the course of discussion
in the Constituent Assembly was that the appointment of Judges of the E
Supreme Court should be with the concurrence of the Chief Justice of
India, but this suggestion was accepted.)

Appointment of Judges of the Supreme Court a11d High Courts under
the Constitution of India p
The fasciculus of Articles 124 to 147 in Chapter IV of Part V under
the caption "The Union Judiciary'' deals with the establishment and con-
stitution 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 G
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 H
814 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A (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
B contemplated under Article 124(2). For appointment of CJI, there is no
specific provision. Similarly, it is obligatory upon the President before
making an appointment of a Judge to a High Court to consult the CJI, the
Government of the State and the Chiet Justice of the High Court (in the
case of appointment of Judge other than the Chief Justice) to which the
C selectee is to be appointed as required under Article 217(1).

The Constitution except stating that "there shall be a Supreme Court
of India consisting of a Chief Justice ......." (vide Article 124(1)) and that
"there shall be a High Court for each State (vide Article 124) and the
"every High Court shall consist of a Chief Justice ......" does not prescribe
D a separate and distinct procedure for appointment of Chief Justice. As the
word 'Judge' includes the Chief Justice also, the procedure prescribed for
appointment of a Judge to the Supreme Court or to a High Court has to
be followed in compliance with Articles 124(2) and 217(1) as the case may
be.
E
Till date, the proposal and procedure followed in the appointment
of Chief Justices and Judges to the Supreme Court and High Courts during
the pre-S.P.Gupta period is more or less the same. No ostensible material
change is brought to our notice in the present existing procedure. Two
F memoranda dated nil have been furnished along with the written submis-
sions made in behalf of Union of India, showing the procedure prior to the
decision in Gupta's case. We shall now reproduce those two memoranda
as well as the present procedure as found in the 121st Report of the Law
Commission so as to have a clear idea of the procedure hitherto followed
in the selection as well as appointment of Judges to the superior judiciary.
G Those two memoranda are said to have been issued earlier to the decision
in Gupta's case.

This first memorandum dealing with the appointment of a Eermanent
Chief Justice of India and Judges of the Supreme Court under Article
H 124(2) prescribes the following procedure :
ADVOCATES ASSN. v. U.0.I. [PANDIAN,J.] 815

"Whenever a permanent vacancy is expected to arise in the office A
of the Chief Justice, the necessary action will be taken by the
Minister of Law and Justice through the private and personal
channel. ·

Whenever a permanent vacancy is expected to arise in the office B
of a Judge of the Supreme Court, the Chief Justice of India will
intimate the fact to the Minister of Law and Justice ·and at the
same time forward his recommendations 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 C
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, D
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."
E
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 p
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 appointment. The Chief Minister will, in
consultation with the Governor, forward his recommendation to
the Minister of Law and Justice in the Central Government. Full
details of the persons recommended particularly those mentioned G
in the Annexure I, should invariably be sent. When the Chief
Minister or the Governor proposes to recommend the name of a
person different to the one put forward by the Chief Justice, the
Chief Justice should be informed accordingly and his comments
invited. These comments should invariably be forwarded along with H
816 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A the communication from the Chief Minister to the Minister of Law
and Justice in the Central Government. The Minister of Law and
Justice in consultation with the Chief Justice in consultation with
the Chief Justice of India and the Prime Minister, will then advice •
the President as to the selection. The same procedure will be
observed with regard to the appointment of Chief Justices, except
B that the recommendation for appointment of Chief Justice will
originate from the Chief Minister."

We would like to extract the present existing procedure adopted as
found in the One Hundred and Twenty First Repo11 of the Law Commission
C of India (July 1987) page JO:
"The present situation is that ordinarily a formal proposal for filling
up of a vacancy in the Supreme Court is initiated by the Chief
Justice of India by recommending the name of the person con-
sidered suitable by him to the Minister of Law and Justice. If the
D Minister accepts the recommendation, the proposal is forwarded
to the Prime Minister of India who, if he approves, advises the
President to issue a formal warrant of appointment under his own
signature. Similarly, in the case of a Judge of the High Court, the
formal proposal emanates from the Chief Justice of the High Court
and if that is accepted by the Chief Minister of the State, the
E
Governor of the State, the Chief Justice of India and the Minister
of Law and Justice, Government of India, the same is processed
and submitted to the Prime Minister of India, who, if he approves,
the recommendation, advises the President to issue a formal war-
rant of appointment."
F
Ever since the advent of our Constitution, the President in appointing
a Judge "by warran~ under his hand and seal" acts on the aid and advice
of the Council of Ministers under Article 74 in the case of Supreme Court
and High Courts. In the matter of appointment of a High Court Judge, the
G 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.

A mounting dissatisfaction has been and is voiced against this existing
H method and strategy of selection through the process of which selectees
ADVOCATES ASSN. v. U.O.L [PANDIAN,J.] 817

have to man the superior judiciary. It is stated in the One Hundred A
Twenty-first Report of the Law Commission of India that " This dissatis-
faction 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."
B
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 March 18, 1981 addressed by the then Law Minister C
of Government of India to the Governor of Punjab and Chief Ministers of
the other States. In addition to the above prayer, in a writ petition filed by
Mr. V.M Tarkunde, a senior advocate practicing in this Court, the proce-
dure and practice followed by the Central Government in appointing
Judges of various High Courts were assailed. A seven-Judges Bench D
presided over by P.N. Bhagwati, J (as the learned Chief Justice then was)
heard all the writ petitions together. All the seven Judges delivered
separate judgments. Bhagwati, J who gave the leading judgment has spelt
out his opinion as under :

E
"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,
so long as such decision is based on relevant consideration and is F
not otherwise malafide. Even if the opinion given by all the con-
stitutional functionaries consulted by it is identical, the Central
Government is not bound to act in accordance with such opinion,
though being a unanimous opinion of all the three constitutional
functionaries, it would have great weight and if an appointment is
made by the Central Government in defiance of such unanimous G
opinion, it may prim a f acie be vulnerable to attack on the ground
that it is malafide or based on irrelevant ground. The same position
would obtain if an appointment is made by the Central Govern-
ment Contrary to t'.1e uJ;.animous opinion of Chief Justice of the
High Court and the CJI ........... " H
818 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A The above view expressed in Gupta's case which affixed the judicial
stamp of approval on the present existing mode of selection and appoint-
ment of Judges to the superior judiciary at the exclusive discretion of the
Central Government, even disregarding the opinions of the constitutional
functionaries including the CJI and the long felt need for a change in the
B present mode and method of appointments appear to be the immediate
provocation for filing these present writ petitions.

The grievance articulated by the petitioners is that under the present
scheme the executive which is given the 'right of primacy' and the 'freedom
C of choice' in the matter of selection and appointment of Judges to the
superior judiciary, 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
D 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
E 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
F to man the judiciary itself.

Justifying the initiation of these proceedings, it has been said that as
the Judges particularly the Chief Justice who are/is sidelined in this juris-
dictional struggle could not even temporarily put aside their judicial robes
G and enter into political debate on this burning and sensitive problem, the
petitioners who are more interested in and wedded to the principle of
independence of judiciary have approached this Court entertaining a
genuine apprehension that if the 'primacy' is not accorded to the opinion
of the CJI in the matter of appointment of Judges, the majesty of the entire
H judicial system would be completely devalued and eroded.
ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 819

Mr. Parasaran appearing on behalf of UOI countervails the above A
arguments contending that the emotional submissions and verbal gynmas-
tics are nothing more than mere verbiage. According to him, there is no
grey area in the present existing procedure of appointment of Judges to be
· annulled or altered. It is further contended that the arguments, advanced
on behalf of the petitioners are barren of force, muchless expose hollow- B
ness because the present existing procedure which has stood and is stand-
ing the test of the day, is the only acceptable procedure which is strictly in
conformity with the constitutional mandate. He states that there is ab-
solutely no riddle wrapped in a mystery inside an enigma in the present
mode and strategy of selection and appointment of Judges as magnified C
and projected by the learned counsel for the petitioners requiring any
change or modification. He further continues to state that any change or
modification in the system will offend the Constitution. But at the same
time, he has said that he is second to none in upholding the dignity and
independence of the judiciary.
D
Before undertaking a painstaking voyage on an obsessive mission to
find out as to whether there are any defects in the present mode and
strategy to the selection and appointment of Judges for the higher judiciary
contrary to the constitutional scheme; if so what those defects are and what
would be the remedy that would cure that disease, we would even at the E
threshold make it ·clear that it is not for us to enter and investigate or to
make a research, 'what the law was, what the law is and what the law ought
to be', but only to interpret the relevant constitutional provisions as they
stand in their spirit and true objectives without subjecting them to any hard
construction or drawing any strained inferences.
F
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 G
becomes impotent of sterile, it will lose its strength and authority. Resul-
tantly, the other constitutim1al 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 'cheer- leader' of the executive or any other authority, however, powerful H
820 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A it maybe.
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
B Judges say it is, and the judiciary is the safeguard of our liberty and of our
property under the Constitution."

Marshal, CJ with reference to judicial activism in interpreting has
observed thus :

c "We must never forget that it is a constitution which we are
expounding, a constitution intended to endure for ages, and con-
sequently to be adapted to the various crises of human affairs. Nor
did they imagine that it was to be so strictly interpreted that
amendments and radical revisions would be constantly required to
k.eep Government functioning smoothly."
D
·Keeping the above view, let _us examine the relevant constitutional
provisions in their true spirit and without stretching them too far.

Clauses (1) and (2) with its first proviso of Article 124 reads thus :
E
"124. Establishment and constitution of Supreme Court. - (1) There
shall be a Supreme Court of India consisting of a Chief Justice of
India and until Parliament by law prescribes a larger number, of
not more than seven* other judges.

F (2) Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation
with such of the Judges of the Supreme Court and of the High
Courts in the State as the president may deem necessary for the
purpose and shall hold office until he attains the age of sixty-five
G years:

Provided that in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of India shall always he .con-
sulted."

H *Now "twenty-five" vide Act. 22 of 1966
ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 821

Article 217 (1) with regard to the appointment of Judges to the High A
Courts read thus :

"Appointment and conditions of the office of a Judge of a High
Court - (1) Every Judge of a High Court shall be appointed by the
President by warrant under his hand and seal after consultation
with the Chief Justice of india, the Governor of the State, and, in B
·the case of appointment of a Judge other than the Chief Justice,
the Chief Justice of the High Court, and judge other than the Chief
Justice, the Chief Justice of the High Court, and ..................".

Under the above provisions, it is the President who is vested with the C
authority of appointment by warrant and under his hand and seal "after
consultation" with specified constitutional functionaries. The consultees
whom the President may in his discretion consult in case of appointment
of a Judge of the Supreme Court are,

(1) Such of the Judges of the Supreme Court, and D
(2) Such of the Judges of the High Courts in the States

as the President may deem necessary for this purpose. 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 E
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 F

(2) The Governor of the State

(3) Chief Justice of the High Court concerned

It is clear that under Article 217 (1), the process of 'consultation' by G
the President is mandatory and this clause does not speak of any discre-
tionary '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 undefmed intonation and it answers all the questions and all the H
822 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A various tests including the test of primacy to the opinion of the 01. This
test poses many tough questions, one of them being, what is the meaning
of the expression 'consultation' in the context in which it is used under the
Constitution. As in the case of appointment of a Judge of the Supreme
Court and the High Court, there are some more constitutional provisions
·B in which the expression 'consultation' is used. Those provisions are :

Clause (5) of Article 148 states that subject to the provisions of this
constitution and of any law made by Par~ament, the conditions of service
of persons serving in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor-General shall be
C such as may be prescribed by rules made by the President after consultation
with the Comptroller and Auditor General.

In Clause (1) of Article 222, it is stated that the President may, after
consultation with the Chief Justice of India, transfer a Judge from one High
Court to any other High Court.
D
Clause (3) of Article 320 states that the Union Public Service Com-
mission or the State Public Service Commission, as the case may be, shall
be consulted on matters enumerated under sub-clauses (a) to (e) of that
clause.
E
Clause (9) of Article 338 reads, "The Union and every State Govern~
ment shall consult the Commission on all major policy matters affecting
Schedule Castes and Scheduled Tribes".

The consultation in all the above Articles is mandatory in character.
F Vide Manpodhan Lal Srivastava v. State of U.P., [1958] SCR 533.
However, the question of consultation by the President as in the case
of appointment of a Judge is not constitutionally warranted in respect of
the appointment of some other constitutional appointees by the President,
namely, (1) the Chairman and Members of Finance Commission under
G Article 280 (1), (2) the Chairman and Members of Public Service Commis-
sion in the case of Union Commission or a Joint Commission under Article
316(1); (3) the Chief Election Commissioner and other Election Commis-
sioners under Article 324(2); and (4) the Chairman and other members of
the Commission representing the different languages specified in the
H Eighth Schedule under Article 344(1); (5) the Special Officer for linguistic'
'
ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.) 823
minorities under Article 350-B. A
The word 'consultation' is a noun whilst the word 'consult' is a verb
and 'consultative' is an adjective. The meaning of the expression 'consult-
ation' is given in Shorter Oxford English Dictionary as :

"Consultation: 1. The action of consulting or taking counsel B
together; deliberation, conference; 2. A conference in ~hich the
parties, e.g. lawyers or medical practitioners· consult and
deliberate. 3. The Action of consulting............"

In Webster's Encyclopedic Unabridged Dictionary of the English Lan- C
guage, the meaning of consultation is given thus :

"Consultation: 1. The act of consulting; conference. 2. a meeting for
dehberation, discussion, or decision......... "

Black's Law Dictionary defines the expression as under :
D
"Consultation: Act of consulting of conferring; e.g. patient with
doctor; client with lawyer. Dehberation 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."
E
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 F
other hand, a sufficient opportunity must be given to the local
authority to tender advice" per Blucknil, L.J. in Rollo v. Minister
of Town and Country Planning, (1988) 1 All E.R. 13 C.A.; see also
Fletcher v. Minister of Town and Country Planning, (1947) 2 All
E.R. 99. G
Word and Phrases - Permanent Edition gives the meaning of 'consult'
thus:

"Consult means to seek opinion or advice of another, to take
. counsel; to deliberate together; to confer; to deliberate on; to H
824 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A discuss; to take counsel to bring about; devise; contrive; to ask
advice of; to seek the information of; to apply to for information
or instruction; to refer to. Teplisky v. City of New York 133 N. Y.S.
2d 260, 261.

In common parlance, whenever the expression 'consultation' is used
B in connection with lawyers, or with the physician of with the engineer etc.
it would mean as seeking opinion or advice or aid or information or
instruction. In Corpus Jusris Secundum Vol. 16A at page 1243, the meaning
of the word 'consultation' is given thus:

c ·Consultation: The word 'consultation' is defined general as mean-
ing the act of consulting; deliberation with a view to decision; and
judicially as meaning the deliberation of two or more persons on
some matter; also council or conference to consider a special case.
In particular connections, the word has been defined as meaning
a conference between the counsel engaged in a case, to discuss its
D question or to arrange the method of conducting it, the accepting
of the services of a physician, advising him of one's symptoms, and
receiving aid from him."

In Law Lexicon by P. Ramanath Aiyar, it is stated as follows :
E "Consultations always require two persons at least, deliberations
may be carried on either with a man's self or with numbers; an
individual may consult with one or many; assemblies commonly
deliberate; advice and information are given and received in con-
sultation; doubts, difficulties, and objection are stated and removed
F in deliberations. Those who have to co-operate must frequently
consult together; those who have serious measures to decide upon
must cooly deliberate."

The expression used in clause (2) of Article 124 is 'after consultation'
G whereas in the proviso to · that clause the expression 'shall always be
consulted, is used. In Article 217 (1), the expression used is 'after consult-
ation.

This word 'consultation' when used in legal sense has come up for
judicial scrutiny before this Court as well as High Courts and foreign
H Courts on many occasions. We shall now recall a few of the decisions,
ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.] 825

interpreting that words. A

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 :

B
"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 consult-
ation. If a complaint is made of failure to consult, it will be for the c
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."
D
In Madras District Municipalities Act, 1920, Section 3 read that
"for the purpose of election of Councillors to a Municipal Council,
the Local Government 'after consulting the Municipal Council' may
by notification decide the Municipality into wards ........." K. Subba
Rao, J (as the learned Chief Justice of this Court then was) who
then adorned the Bench of the Madras High Court interpreted E
the word 'consult' in R. Pushpam & Anr. v. State of Madras, AIR
(1953) Mad. 392, as under:

"The word 'consult' implies a conference of two or more persons
or an impact of two or more minds in respect of a topic in order p
to enable them to evolve a correct, or at least, a satisfactory
solution. Such a consultation may take place at a conference table
or through correspondence. The form is not material but the
substance is important. It is necessary that the consultation shall
be directed to the essential points and to the core of the subject G
involved in the discussions. The consultation must enable the
consultor to consider the pros and cons of the question before
coming to a decision. A person consults another to be elucidated
on the subject-matter of the consultation. A consultation may be
between an uniformed person and an expert or between two
experts. A patient consults a doctor, a client consults his lawyer; H
826 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A two lawyers or two doctors may hold consultations between them-
selves. In either case the final decision is with the consultor, but
he will not generally ignore the advice except for good reasons. So-
too in the case of a public authority. Many instances may be found
in statutes when an authority entrusted with a duty is directed to
perform the same in consultation with another authority which is
B qualified to give advice in respect of that duty. It is true that the
final order is made and the ultimate responsibility rests with the
former authority. But it will not, and cannot be, a performance of
duty if no consultation is made, and even if made, is only in formal
compliance with the provisions. In either case the order is not
c made in compliance with the provisions of the Act.

A five-Judges Bench of this Court in Chandramouleshwar Prasad v.
Patna High Court & Ors., [1970] 2 SCR 666, while interpreting the word
'consultation' as appearing in Article 233 of the Constitution has observed
D as follows :

"Consultation with the High Court under Art. 233 is not an empty
formality. So far as promotion of officers to the cadre of District
Judges is concerned the High Court is best fitted to adjudge the
claims and merits of persons to be considered for promotion. The
E Government cannot discharge his function under Art. 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
F 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 Art. 233. We
cannot accept this. Consultation or deliberation is not complete or
effective before the parties thereto make their respective points of
G 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 com-
municated to the proposer the direction to give effect to the
counter proposal without anything more, cannot be said to have
H been issued after consultation."
ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 827

In Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814, A
Krishna Iyer, J speaking for himself and on behalf of Bhagwati, J has
articulated the evaluation of the opinion of the ChiefJustice of India in the
matter concerning judiciary and expressed his views thus :

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

Thereafter, in Sankal Chand (supra), Krishna Iyer, J speaking for D
himself and Fazal Ali, J. in his concurring but separate judgment has ruled
thus:

"It must also be borne in mind that if the Government departs from
the opinion of the Chief Justice of India it has to justify its action E
by giving. cogent and convincing reasons for the same and, if
challenged, to prove to the satisfaction of the Court that a case
was made out for not a~cepting the advice of the Chief Justice of
India. It seems to us that the word 'consultation' has been used in
Article 222 as a matter of constitutional courtesy in view of the
fact that two very high dignitaries are concerned in the matter, F
namely, the President and the Chief Justice of India. Of course,
the Chief Justice has no power of veto, as Dr. Ambedkar explained
in the Constituent Assembly."

In the same case, Krishna Iyer, J after giving lexicon meaning of G
'consultation' has stated :

We consult a physician or a lawyer, an engineer or an architect,
and thereby we mean not casual but seri«;ms, deliberate seeking of
informed advice, competent gnidance and considered opinion.
Necessarily, all the materials in the possession of one who consults H
828 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A must be unreservedly placed before the consultee. Further, a
reasonable opportunity for getting information, taking other steps
and getting prepared for tendering effective ad. meaningful advice
must be given to him. The consultant, in turn, must take the matter
seriously since the subject is of grave importance. The parties
affected are high-level functionaries and the impact of erroneous
B judgment can be calamitous. Therefore, it follows that the Presi-
dent 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
c information he possess and proceed in the interests of the ad-
ministration 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 consen-
taneity. They may discuss but may disagree, they may confer but
may no concur. And in case, the consent of the Judge involved is
D
not a factor specifically within the range of Article 222".

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
E cannot keep facts up his sleeve. He does so at his peril of he can receive
no true advice unless he discloses facts necessary for diagnosis of his
malady." Thereafter, making reference to Pushpam's case (supra), the
learned Judge stated. "In order that the two minds may be able to confer
and produce a mutual impact, it is essential that each must have for its
consideration full and identical facts, which can at once constitute both the
F source and foundation of the final decision."

Bhagwati, J in Sankal Chand has wholly endorsed what Krishna Iyer,
J. has observed about the nature and intent of the expression, 'consultation
with the Chief Justice of India' occurring in clause (1) of Article 222.
G
Bhagwati, J (as the learned Chief Justice then was) in Gupta's case
has articulated that Articles 124 (2) and 217 (1) speak of only constitutional
functionaries having a consultative role and held thus :

"........... It is not an unfettered power in the sense that the Central
H Government cannot act arbitrarily without consulting the constitu-
ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 829

tional functionaries specified in the two Articles but it can act only A
after consulting them and the consultation must be full and effec-
tive· consultation.

The question, immediately arises what constitutes 'consultation'
within the meaning of clause (2) of Article 12 and clause (1) of
Article 217. Fortunately, this question is no longer res integra and B
it stands concluded by the decision of this Court in Sankalchand
Seth's case (supra) related to the scope and meaning of 'consult-
ation' in clause (1) of Article 222 ........................................................ .

c
Each of the constitutional functionaries required to be consulted
under these two articles must have for his consideration full and
identical facts bearing upon appointment or non-appointment of
the person concerned as a Judge and the opinion of each of them D
taken on identical material must be considered by the Central
Government before it takes a decision whether or not to appoint
the person concerned as a Judge. But while giving the fullest
meaning and effect to 'consultation' it must be borne in mind that
it is only consultation which is provided by Government and
consultation cannot be equated with concurrence .............................. E

It is, therefore, clear that where there is difference of opinion
amongst the constitutional functionaries in regard to appointment
of a Judge in a High Court, the opinion of none of the constitu- F
tional 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 G
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 ................................................................................ H
830 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A

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
B 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 consult-
ations with each of the three constitutional functionaries after
placing all relevant material before them.
c Fazal Ali, J in Gupta's case has agreed with the view expressed by
Bhagwati, Desai and Venkataramiah, JJ as regards the exposition of the
concomitants of consultative process.

Desai, J has accepted the view expressed in Chandramouleshwar
D Prasad v. Patna High Court (supra) as being a good law even for Article
217(1).

Pathak, J (as the learned Chief Justice then was) has expressed his
view stating :

E "At the same time I am unable to accept the content10n that as the
Constitution stands today, the President is obliged in all cases to
agree with a recommendation in which the Chief Justice of the
High Court and the Chief Justice of India have concurred. During
the Constituent Assembly Debates a proposal was made by a
F member that the appointment of Judges should require the con-
currence of the Chief Justice of India (although that suggestion
was made in connection with the appointment of Judges of the
Supreme Court), but that proposal was not accepted. The Law
Commission of India in its Fourteenth Report, Vol. 1 p.7 surveyed
the machinery for appointing a Judge of a High Court and con-
G sidered it desirable that the provision in clause (1) of Article 217
should be altered to provide for 'not merely consultation with the
Chief Justice of India but his concurrence in the proposed appoint-
ment.' That recommendation has not borne fruit and we are
concerned with the position which prevailed then and continues
H today."
ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.) 831

In Subhash Shanna (supra), Ranganath Mishra, CJ speaking for the A
three-Judges Bench explained the significance of the word 'consultation
with the Chief Justice of India' as appearing in Article 124(2) and 217 (1)
as follows :

"The word 'consultation' is used in the constitutional provision in B
recognition of the status of the high constitutional dignitary who
formally expresses the result of the institutional process leading to
the appointment of judges. To limit that expression to its literal
limitation, shorn of its constitutional background and purpose, is
to borrow Justice Frankfurther's phrase "to stick in the bark of
words ........................................................................................................ C

'Consultation' should have sinews to achieve the constitutional D
purpose and should not be rendered sterile by a literal interpreta-
tion."

Mr. F.S. Nariman, the learned senior counsel has submitted that the
meaning of the expression 'after consultation with' must be determined in E
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 con-
sultation must be related to circumstances which call for it. F

,,
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 referei;ice only
to judicial office (as contrasted with other high ranking constitutional
offices) shows that it does not bear the ordinary literal meaning but it G
means something more than merely seeking an advice.

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 consult- H

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

A ation and that the requirement of prior consultation in respect of judicial
offices in the Constitution was truly intended to be a reservation or
limitation on the power to appoint and that it is not merely a condition
precedent to the exercise of the power to appoint. It is further submitted
that the link between the advice given as a result of the consultation and
B the ultimate appointment of the person about whom there is consultation
for judicial office, is inextricable making the entire process of appointment

r
of Judges under the constitution as one 'integrated process'. In this con-
nection, our attention was drawn to the illustrative observation of Subba
Rao, 0 speaking for the Constitution Bench in Chandra Mohan v. State of
C Uttar Pradesh & Ors., (1967] 1 SCR 77 at 83 wherein, he had said :
"To state it differently, if A is empowered to appoint B in consult-
ation with C, he will not be exercising the power in the manner
prescribed if he appoints B in consultation with C and C."

D This passage, according to Mr. Nariman indicates that the advice
tendered by the constitutional authority required to be consulted, of a
binding character, though it does not specifically decide so.

He cites a decision of the Supreme Court of Tennessee in Colyar v.
E Wheeler et.al. mentioned in Words and Phrases - permanent Edition
Volume 9, in which the following principled are laid down:

"1. Where, by a post-nupital settlement, a husband and wife con-
veyed to a trustee all of the wife's property, reciting that the
purpose of the deed was that the trustee might hold the legal title
F for the wife's sole and separate use, with the absolute right of
disposition as she might choose on consultation with said trustee,
such conveyance created an active trust, the imposed on the trustee
the duty of preserving the property for the wife's separate use
during coverture.

G 2. Where a married woman's property was conveyed to a trustee
to hold the legal title for her sole and separate use, with the
absolute right of disposition as she might choose, on consultation
with said trustee, the provision requiring consultation was
equivalent to a requirement of the consent of the trustee, to be
H evidence by his signature to the conveyance and hence mortgages
ADVOCATES ASSN. v. V.O.l. [PANDIAN, J.] 833

executed by the wife and her husband without the trustee's consent, A
and in which he did not join were void,"

Mr. Ram Jethamalani, learned senior counsel expressed his
grievance that the principles laid sown in Chandra Mohan's case (supra)
were not appreciated by the learned Judges while dealing with Shamsher B
Singh's case who in his submission, have ignored the principle of har-
monious construction which was articulated in K.M. Nanavati v. State of
Barnaby, (1967] 1 SCR 97. According to him, the judgment in Gupta's case
may be regarded as per incuriam. He articulates that the expression 'con-
sultation' is itself flexible and in a certain context capable of bearing the
meaning of 'consent' or 'concurrence.' C

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 Minister~. He brought to our D
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 E
in the Central Government" and thirdly, "the opinion of the Governor of
the State which means State Government... ......".

By the above observation in Gupta's case, according to him this Court
has erred in reading into the words, The President' and 'the Governor of
the State' as meaning 'the Central Government' and 'the State Government' F
respectively'' which is neither the true intent of the Constitution nor war-
ranted in the field of appointment of Judges. He regrets that where there
are guide to nuts and bolts, it is highly distressing and derlorable that there
are no canalised guidelines as regards the method of selection and appoint-
ment of Judges to the higher juJiciary. G

\' Mr. K. Parasaran, the learned senior counsel appearing on behalf of
the respondents strenuously and fervently refutes the above arguments
stating that when the Constitution points out three functionaries including
the CJI who have to be consulted by the President, there is no question of H
834 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A giving primacy to the opinion of the Chief Justice of India over and above
the opinion of the other consultees with regard to the same subject matter
under the same context. He states that there could be no reason to give
primacy to the opinion of the CJI expressed during the consultation except
on the principle of so called hierarchy. He adds that the very scheme of
B the Constitution not providing for administrative control of the High
Courts by the Supreme Court, itself militates against giving primacy to the
opinion of the CJI in the process of 'consultation' over the Chief Justice of
the High Court who is also one of the ,constitutional functionaries to be
consulted by the President as adumbrated under Article 217(1). Similarly,
C the Executive also has an important role to play in .the process of consult-
ation since the Executive may have knowledge as to the qualities and
affiliations and personal integrity of the selectee other than his/her legal
ability and professional attainments. In support of his submission he
referred to the debates of the Constituent Assembly and to certain
proposed amendments to the draft Article which, according to him, would
D show that 'consultation' does not mean 'consent' or 'concurrence'. For
understanding and appreciating his arguments, we would like to reproduce
the proposed amendments.

Shri B. Pecker Sahib moved the following amendment to Article 103:
E
"(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
F 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."

G Similarly, Mr. Mahboob Ali Baig Sahib proposed the following
amendment:

H
" 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."
'
ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.) 835

To the draft Article 193 with respect to the appointment of High A
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 recommen-
dation of the Chief Justice of the High Court concerned after
consultation with the Governor of India State concerned and with B
the concurrence of the Chief Justice of India and shall hold office
until he attains the age of sixty-three years."

All the above amendments were rejected after a long deliberation in
the Constituent Assembly. Mr. Parasaran urges that when those amend- C
ments expressly providing for the concurrence of the CJI were rejected and
the present Article 124 and 217 have been enacted placing all the constitu-
tional functionaries including the CJI as only consultees, no interpretation
can be justifiably given that consultation with the CJI must be given
primacy. According to him, if such a construction is given to the word D
'consultation', we would be rewriting the Articles. Then he cites an obser-
vation from the Special Courts Bill [1979) 2 SCR 476 wherein the word
'consultation' was not construed 'concurrence' but only as 'consultation' as
ruled in Sankal Chand. That observation reads thus :
•
"...... the process of consultation has its own limitation and they are E
quite well known. The obligation to consult may not necessarily
act as a check on the executive ........"

Referring to the new clause (4) to Article 22 which is a proposed
substitution by the Constitution {Forty-fourth} Amendment Act, 1978 {for
which date of enforcement is yet to be notified} in relation to the composi- F
tion of the Advisory Board, reading "Advisory Board constituted in accord-
ance with the recommendations of the Chief Justice of the appropriate
High Court", it has been asserted by Mr. Parasaran that this newly
proposed clause is introduced bearing in mind the interpretation made by
this Court in Sankal Chand and Special Courts Bill that consultation does G
not mean concu"ence. He states that this is, therefore, a case of legislative
ratification by tlie constituent power of the interpretation made by this
Court as to the meaning of the word 'consultation'. For principle of
legislative ratification, he cites the ~following decisions, {1} Commissioner
of Income Tax v. Basi Dhar & Sons, [1985) Suppl. 3 SCR 850, (2) State of H
836 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Tamil Nadu v. Neelai Cotton Mills, [1990] 2 SCR 33 at 38-39, (3) F.S.
Gandhi v. Commissioner of Wealth Tax, [1990] 2 SCR 886 at 897, (4)
Keshavji Ravji v. Commissioner of Income Tax, [1990] 1 SCR 243 at 257.

After having made reference to the proposed amendments to Ar-
ticles 103 and 193 of the draft Constitution Mr. Parasaran has recalled the
B 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
c 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 appoint.nent of Judges is really
D 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."

According to Mr. Parasaran, the entire debate on this topic in the
E 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 designedly used
the expression 'consultation? instead of 'concurrence' or 'consent' which in
turn shows that the opinion expressed by all the constitutional functionaries
during the consultation by the President have equal weightage and none of
F
them can be placed superior to the other.

Mr. Parasaran finally makes a blistering attack against and fends off
the petitioners' counsel's arguments stating that it is rather difficult to
accept the construction of the word 'consultation' as on behalf of the
G petitioners and that if such a construction that the primacy should be given
to the opinion of the Chief Justice expressed during the consultation, is
accepted, then Article 124(2) Main Part will become redundant and otiose.
He continues to state that had the intention of the framers of the Constitu-
tion been that the consultation with the CJI alone is sufficient, Article 124
H would have been drafted without a proviso reading, that every Judge of the
ADVOCATESASSN. v. U.O.I.[PANDIAN,J.] 837

Supreme Court shall be appointed by the President always in consultation A
with the Chief Justice of India and in his discretion may in consultation
with such of the Judges of the Supreme Court and the High Courts in the
States, if the President so deems necessary for the purpose. Reliance was
placed on an observation of this Court in State of Uttar Pradesh & Ors. v.
Radhey Shyam Nigam & Ors. etc. etc., (1989] 1 SCR 92, wherein Sabyasachi B
Mukharji, J (as the learned Chief Justice then was) speaking for the Bench
had said that it is a settled rule of the interpretation of statutes that
provisions of an Act should be interpreted in such manner as not to render
any of its provisions otiose unless there are compelling reasons for the
Court to resort ~o that extreme contingency. He also cites Shri Balaganesan C
Metals v. M.R. Sanmugham Chetty Ors., (1987] 2 SCC 707, which decision
has been relied upon in Radhey Shyam Nigam & Ors. (supra). According
to him, the purpose of en.acting Article 124 (2) with a separate proviso is
that in the process of consultation, the Chief Justice of India is always a
consultant, who should be consulted and the other Judges whom the
President my choose to consult, are variable in that the President may D
consult different Judges on different occasions as the facts and circumstan-
ces of the case may suggest to him.

The learned Attorney General projects the view expressed by Pathak,
J (as the learned Chief Justice was) in his minority judgment. According E
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, he 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.
F

The controversy that arises for scrutiny from the· arguments ad-
dressed boils down with regard to the construction of th©-word 'consult-
atimi_s.
G
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 oc-
casions, are hidden or unforeseen. However, 'the implication, relevance,
signification, spirit and core of that word, as used in the Constitution are H
838 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A beyond the range of the interest of a layman.

In Chapter 4 of the Treatise titled, "The Loom of Language'~ it is
stated:

"Words are not passive agents meaning the same thing and carrying
B the same value at all times and in all contexts. They do not come
in standard shapes and sizes like coins from the mint, nor do they
go forth with a degree to all the world that they shall mean only
so much, no more and no less. Through its own has a penuntire
of meaning which no draftsman can entirely cut away. It refuses
C to be used as a mathematical symbol."

In Town v. Eisher, 245 U.S. 418, Mr. Justice Holmes said that "a word
is not a crystal, transparent and unchanged; it is the skein of a living
thought and may vary greatly in colour and content according to the
D circumstances and the time in which it is used."

~hagwati, J in Sankal Chand has pointed out that "the words used in
a statute cannot be read in isolation, their colour and content are derived
from their context and, therefore, every word in a statute must be examined
in its context............ The context is of the great importance in the inter-
E pretation of the words used in a statute."

The Privy Council in Minister of Home Affairs and Another v. Fisher
and another, [1979] All ER 21, has held that a constitutional instrument is
a document sui generis to be interpreted according to principles suitable
F to its particular character and not necessarily according to the privileges,
rules and presumption of statutory interpretation.

The essence of the various decisions of this Court, High Courts as
well as foreign Courts is that when we give a liberal construction to a word
used in a statute particularly in the Constitution, we must first of all take
Q note of the relevant and significant context in which that word is used and
then interpret that word in that context with meaningful purpose. If the
construction of the word is made only in a literal or lexical meaning, then
is every possibility of missing the real intent of the provisions.

H When it is commonly said that words are the daily currency of the
ADVOCATES ASSN. v. U.O.l.[PANDIAN,J.) 839

law, the value of which will never become obsolete; the eirchanged value of A
those currencies would depend upon the context of their usage. In fact, the
word 'consultation' coined in the Constitution in one sense is well suited
to the age though the said word has given room for different connotations.
We are not deliberately contributing any hyperbolic and exaggerated mean-
ing but only the manifested meaning that the currency of the word intends B
to convey.

In the above background of the constitutional scheme, we shall now
examine the relevance and significance of consultation with the CTI 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 C
merely on its ordinary lexical definition but greatly upon its contents
according to the circumstances and the time in which the word or expres-
sion is used. Therefore, in order to ascertain its colour and content, one
must examine the context in which the word is used.
D
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 ot appointment of other constitutional appointees,
which we have indicated and itemised in the preceding part of this judg- E
ment. 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 'President' and the
'Governor' meaning 'the Central Government and 'the State Government'
respectively, and that "it would, therefore, be open to the Central Govern-
ment to override the opinion given by the constitutional functionaries F
required to be consulted and to arrive at its own decision in regard to the
appomtment of a Judge of the High Court or the Supreme Court so long
as such decision is based on relevant considerations and is not otherwise
malafide.
G
This dictum laid down in Gupta's case is that the power of appoint-
ment of Judges rests with the President who will act on the advice given
by Council of Ministers after making consultation and upon due considera-
tion of the .opinions of the persons consulted. As to the nature of the
consultation required, the Constitution does not lay down any specific H
840 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A mode, and in fact there is no guideline as pointed out by Mr. Kapil Sibal.
But the view has been taken that since the consultation is a mandatory
condition precedent, it should be effective which means what (1) the
President must disclose all the facts which are necessary for due delibera-
tion by the CJI, (2) the CJI must express his opinion with nothing less than
B the full consideration of the matter on which he is consulted upon the ·
relevant facts; and (3) the quintessence of consultation being that the two
parties must exchange their views and examine the merits of the proposal
and counter proposal upon the identical-materials. Vide Sankal Chand.

In this context, a baffling question is as to what would be the effect
C of non consultation. In State of U.P. v. Manbodhan Lal Srivastava, [1958]
SCR 533, while construing the expression 'shall be consulted' occurring in
Article 320 (3) held that "Article 320(3) (c) of the Constitution does not
confer any rights on a public servant so that the absence of consultation or
any irregularity in consultation should not afford him a cause of action in
D Court of law, or entitle him to relief under the special powers of a High
Court under Art. 226 of the Constitution. See also Ram Gopal v. State of
Madhya Pradesh, [1970] 1 SCR 472 and A.N.D. 'Silva v. Union of India,
[1962] Supp. (1) SCR 968.

E The question that follows is whether the same view may be taken it
the President appoints a puisne Judge of· the Supreme Court without
consulting the CJI at all. If 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
F 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 :

G "........ .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
H consulted by the President in behalf of the proposed transfer.
ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 841

Indeed, it is euphemistic to talk in terms of effectiveness, because A
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."

Krishna Iyer, Jin the same judgment speaking for himself and Fazal
Ali, J has expressed his view that "a proper construction of Article 222(1), B
having realistic regard to the setting and scheme of the Constitution, leads
necessarily to the conclusion that 'consultation' with the Chief Justice of
India has, its inesapable component, the securing of the transferee Judge's
consent to the transfer."
c
Bhagwati, J. found himself entirely in agreement with what Krishna
Iyer, J has expressed. '

Untwalia, J. while generally agreeing with the view expressed in this
regard by Chandrachud, J. added that "no order of transfer can be made
by the President without the consultation with the Chief Justice of India." D

Thus, it is seen that the consensus of opinion is that consultation with
the CJI is a mandatory condition precedent to the order of transfer made
by the President so .that non-consultation with the CJI shall render the
order unconstitutional i.e. void. E
The above view of the mandatory character of the requirement of
consultation taken in Sankal Chand has been followed and reiterated by
some of Judges in Gupta's case.

Fazal Ali, J. has held in Gupta's case : F

"(3) If the consultation with the CJI has not been done before
transferring a Judge, the transfer becomes unconstitutional."

Venkataramiah, Jin Gupta's case has also expressed the same view.
G
In the light of the above view expressed in Sankal Chand and some
of the Judges in Gupta's case, it can be simply held that consultation with
the CJI under the first proviso to Article 124(2) as well under Article 217
is a mandatory condition, the violation of which would be contrary to the_
constitutional mandate. H
842 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A Before we come to the next phase of the aspect of this matter as to
whether the President (which in the opinion of Bhagwati, J. meant the
Central Government), can ignore completely the opinion of the CJI and
act contrary to his opinion after due consultation, we shall examine the
ostensible purport of consultation with the CJI.
B
The vital role to be played by the CJI in the process of selection of
candidates for Judgeship for the superior judiciary is to sponsor and
recommend properly fit and competent persons by evaluating their merit
and efficiency. It will not be out of place to mention that Shri M.C.
Setalvad, the eminent jurist and former Attorney General of India has
C expressed his deep resentment in the Fourteenth Report of the Law Com-
mission 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
D emphasising the importance of the opinion of the Chief Justice of India
recommended the use of the expression 'concurrence' instead of 'consult-
ation' 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 :
E
"217. (l) 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
F
Justice of the High Court, and shall hold office, in the case of an
additional or acting Judge, as provided in Article 224 and in any
other case, until he attains the age of sixty years."

See Law Commission Fourteenth Report Page 70 para 9.
G
It is beyond controversy that merit selection is the dominant method
for judicial selection and the candidates to be selected must possess high
integrity, honesty, skill, high order of emotional stability, firmness, serenity,
legal soundness, ability and endurance. Besides the above, the hallmarks
H Of the most important personal qualifications required are moral vigour,
ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 843

ethical firmness and imperviousness to corrupting or venal influences, A
humility and lack of affiliation, judicial temperament, zeal and capacity to
work. In Texas Law Review (Volume 44) 1966 at page 1068 and 1071,
the following passage are found emphasising the desirable qualities of the
Judges:

"It is easy to understand why the active judges deem noble inner
B
qualities highly desirable. It is also natural that they should give
the highest ratings to good repute, "Good name in man or
woman ......... is the immediate jewel" of their souls, Shakespears
said, and judges share with you and me a taste for such treasures.
As for good health, is there anyone who does not prize it? Nobility C
and virtue, good name and well-being - these are never out to
place. In a man who wields the power and enjoys the standing of
a judge, they are more than welcome. No one seeking judicial office
would boast that he lacked any of them, and no appointing
authority would look for men without them.......................... While D
qualities of the mind were not named as frequent, as qualities of
the heart and spirit, intellectual power was not entirely neglected.
In the judges' own words, "a capacity for abstract though", "im-
agination", "learning", "a retentive memory," "quick thinking",
"intellectual curiosity", and "ability to analyze and articulate"
deserve attention. E

It would be most appropriate to recall the speech of Sir Winston
Churchill while moving a Bill for raising the salary Judges. It reads thus :

"The service rendered by judges demands the highest qualities of F
learning, training and character. These qualities are not to be
measured in terms of pounds, shillings and pence according to the
quantity of work done. A form of life and conduct far more severe
and restricted than the of ordinary people is required from Judges
and, though unwritten, has been most strictly observed. They are
at once privileged and restricted. They have to present a con- G
tinuous aspect of dignity and conduct." Vide Parliamentary Debates
(Hansard) House of Commons Debates dated 23.3.54 Vol. 525 Cols.
1061-62.

In 'The Role of the Trial Judge in the Anglo-American Legal System H
844 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A 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." ·

It is befitting, in this context, to describe in short, an outstanding and
B distinguished Judge, in the words of Shakespears in 'The Merchant of
Venice' reading, "A Daniel come to judgment! yea, a Daniel!"

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
C executive who has to undertake this process of evaluation and selection?

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 some patent obstacles and defects in the
D existing process of selection of Judges and that the present impressionistic
evaluation is not a satisfactory tool to use in selecting Judges on merit. It
cannot be gainsaid that only those who know what criteria they should
adopt in assessing merit, can alone evaluate meaningfully a candidate's
merit and select the prospective candidate. While weighing and evaluating
E the qualifications of the prospective candidate, whose names come to
attention, the sponsoring authority has to assess their merit by whatever
useful non-bromidic guidelines it could devise based on its longstanding
experience both on the Bar and the Bench. That authority could be only
the Chief Justice of India and the Chief Justice of the High Court con-
F cemed who and who alone can speak of a candidate's professional attain-
ments, his learned ability and his legal experience though the executive can
speak of the other qualities such as affiliation, personal integrity, antece-
dents and background of the candidate. In this connection, it will be
worthwhile to mention the observation of Sir Winston Churc.1iill in the
House of Commons that "Perhaps only those who have led the life of a
G Judge can know the lonely responsibility which rests upon him." Vide
Parliamentary Debates (Hansard) of Commons Debates dated 23.3.54 Vol.
525, Col. 1061. The recipe regarding the professional qualifications could
be evaluated only by the Chief Justice. The views advanced that the
Government can inexcusably ignore the opinion of the CJI expressed
H during the process of consultation as well as of the Chief Justice of the
ADVOCATES ASSN. v. U.0.1.[PANDIAN,J.] 845

High Court and appoint its selectees on its own evaluation of the merit of A
the candidates, in our considered opinion, cannot be a conceivable logical
conclusion.

It cannot be gainsaid that the CH being the head of the Indian
Judiciary and paterfamilias of the judicial fraternity has to keep a vigilant B
watch in protecting the integrity and guarding the independence of the
judiciary and he in that capacity evaluates the merit of the candidate with
regard to his/her professional attainments, legal ability etc. and offer his
opinion. Therefore, there cannot be any justification in scanning that
opinion of the CJI by applying a super-imposition test under the guise of
over-guarding the judiciary. C

In this context, it will be relevant to quote the verse of Decimus
Junius Juvenalis, a Roman satirist who while denouncing the vices of
imperial Rome stated thus :
D
"Sed quis custodiet ipsos Custodes? (But who is to guard the
guards themselves?)"

One should not lose sight of the important fact that appointment to
the judicial office cannot be equated with the appointment to the executive E
or other services. In a recent judgment in All India Judges' Association
& Others v. Union of India & Others, [1993] 4 JT 618, rendered by a
three-judges Bench presided over by M.N. Venkatachaliah, CJ and consist-
ing of AM. Ahmadi and P.B. Sawant, JJ, the following observations are
·made:
F
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. G
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 three organs of the State and each
one of them in turn represents the authority of the State. However, H
846 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A those who exercise the state-power are the ministers, the legislators
and the judges, and not the members of their staff who implement
or assist in implementing their decisions. The council of ministers
or the political executive is different from the secretarial staff or
the administrative executive which carries out the decisions of the
B political executive. Similarly, the legislators are different from the
legislative staff. So also the judges from the judicial staff. The parity
is between the political executive, the legislators and the Judges
and not between the Judges and the administrative executive. In
some democracies like the U.S.A., members of some State
judiciaries are elected as much as the members of the legislature
c
and the heads of the State. The Judges, at whatever level they may
be, represent the State and its authority unlike the administrative
executive or the members of other services. The members of the
other services, therefore, cannot be placed on par with the mem-
bers of the Judiciary, either constitutionally or functional-
D
ly....................... It is high time that reasons pointed out above there
· cannot be any link between the service. conditions of the judges
and those of the members of the other services......................... As
pointed out earlier, the parity in status is no longer between the
judiciary and the administrative executive but between the judiciary
E and the political executive Under the Constitution, the judiciary is
above the administrative executive and any attempt to place it on par
with the administrative executive has to be discouraged." (emphasis
supplied)

F With a view to contradicting and overthrowing the above argumen~
and the executive should not have any unfettered 'say' and 'control' over
the selection and appointment of Judges to the highest echelon of the
judiciary, various methods followed in different foreign countries have been
projected and pressed into service. Firstly, they referred to the methods
G adopted in the appointment of Judges in the United States of America by
nomination or by election as the case may be, in that the Judges to the
federal Supreme Court of the United States are nominated by the Presi-
dent of USA and the Judges to some State judiciaries are elected. They
also referred to the Constitution of Courts in the United Kingdom, namely,
H Supreme Court of England and Wales consisting of the Court of Appeal,
ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.] 847

the High Court of Justice and the Crown and to the status accorded to the A
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. ls 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. . B
where also, of course, the executive is exclusively vested with the power of
appointment of Judges.

True, the power of appointment of Judges in niany 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, C
in fact, that process itself i5 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 an incisive and searching questioning regarding D
the constitutional philosophy of the <:andidate concerned his/her ability,
potentiality etc. The views expressed by the candidate is made know to the
entire people of America through media such as newspapers, televisions
•
etc. It is only thereafter, the Committee makes its recommendations for or
against to the Senate which in turn approves or disapproves the candidate E
by a simple majority of the Senate. If the candidate is approved, his
appointment is made for life tenure. Present methods of appointment of
State level Judges in United States are : (1) Partisan election (16 States);
(2) Non-partisan election (16 States); (3) Appointment by executive
(Federal System, 9 States and Puerto Rico); (4) Selection by the Legisla-
ture (4 States); (5) Merit system (13 States).
F

In the process of election to the State judiciary- there is always an
element which is unknown to our legal system.

Mississippi, in 1832 was the first state to adopt a completely elective G
judiciary. New york, however, by action of its constitutional convention in
1864, led the switch from legislative and gubernatorial appointment to
election. All states entering the Union from then until the entrance of
Alaska in 1958 came in with an elected judiciary and even the colonial
states of Georgia, Marryland, Virginia and Pennsylvania joined in the H
848 SUPREME COU~T REPORTS [1993) SUPP. 2 S.C.R.

A switch from appointment to election.

Dissatisfaction began to develop immediately after election of the
judiciary came into vogue in the mid 1800's. In the 1860's, the Tammany
Hall organisation in New York City seized control of the elected judiciary
and aroused public indignation by ousting able judges and putting in
B incompetent ones. As a result, the question of a return to the appointment
method was submitted to the people by referendum in 1873 but was
defeated. Tammany control of the judiciary continued, and similar condi-
tions in other states led to a revulsion agirinst the elective system soon after
it was established. Virginia went back to legislative selection after fourteen
C years of judicial elections. Vermont elected minor court judges for twenty
years but abandoned this method in 1870. Even Mississippi went back to
appointmet in 1868 and retained it until 1910. Furthermore, states which
retained the elective system became increasingly, concerned about the
adverse effect of political selection on the quality of judicial personnel and
D developed the nonpartisan ballot as a means of "taking the judges out of
politics."

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
E judicial appointments. according to that plan, when a vacancy occurs, the
names of all applicants are submitted to the proper judicial commission,
ge~erally by·Ietter 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
F 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
G Plan, the judiciary in Missouri had moved from political dependence to
judicial independence.

See Texas Law Review (Volume 44) 1966.

Thus, it is seen that even in some of the states in the USA, there was
H rethinking of the selection process of Judges and going back to the process
ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 849

of 'nomination' because it had been felt that the direct election system A
produces politically oriented opinions and invited apathy to judicial ac-
tivity.

In United Kingdom, the Lord Chancellor who is politically desig-
nated as head of the judicial hierarchy advises on all appointments to the
judicial office from the rank of Justice of the Peace to the higher offices
B
of the English judiciary. The appointments to the Court of Appeal and the
House of Lords and to the offices of Lord Chief Justice, Master of the
Rolls and President of the Family Division are .!!1~de of the advice of the
Prime Minister after consultation with the Lord Chancellor. He (Lord
Chancellor) presides over the House of Lord besides being Member of the C
Cabinet and Head of the Judiciary. He combines in his position three fold
functions of Executive, Legislature and Judiciary. In short in United
Kingdom, the power to select and appoint Judges unquestionably vests in
the Executive. However, opinions were expressed that there must be an
advisory body to assist the Lord Chancellor in the- matter of selection of D
personnel for appointments to higher judiciary. Consequent upon that in
1972, the Justice Sub committee on the Judiciary recommended that while
the Lord Chancellor should retain control of the appointment
Machinery, he should be helped in his task by a small Advisory Appoint-
ments Committee. Vide Law Commission of India (One Hundred Twenty- E
first Report page 38 para 6.16).

As we have pointed out in the preceding part of this judgment while
dealing with the concept of independence of judiciary even in foreign
countries, there is a demand for a change in the system of selection and
appointment of Judges. In fact, similar argument was advanced before the F
Constituent Assembly and suggestions for appointments of Judges were
made on the models in existence in different parts of the globe. But Dr.
B.R. Ambedkar repelled and rejected that line of argument and sugges-
tions, stating thus :
G
"It seems to me, in the circumstances in which we live today, where
the sense of responsibility has not grown to the same extent which
we find in the United States, it would be dangerous to leave the
appointments to be made by the President, without any kind of
reservation of limitation, what is to say; merely on the advice of H
850 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 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.'

It is not necessary to expatiate on this topic any more and this aspect
B need detain us from proceeding further.

Nevertheless, we have, firstly to find out the ails from which our
judicial system suffers, secondly to diagnose the root cause of those ail-
ments 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
C 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 (mean-
ing thereby according to national problems in a mixed culture etc.) but not
according to American or British pharmacopoeia which are alien to our
D Indian system though the system adopted in other countries may throw
some light for the development of our system. The outcry of some of the
critics is when the power of appointment of judges in all democratic
countries, far and wide, rests only with the executive, there is no substance
in insisting that the primacy should be given to the opinion of the CJI in
E selection and appointment of candidates for judgeship. This proposition
that we must copy and adopt the foreign method is a dry legal logic, which
has to be rejected even on the short group that the Constitution of India
itself requires mandatory consultation with the CJI by the President before
making the appointments to the superior judiciary. It has not been brought
F to our notice by any of the counsel for the respondents that in other
countries the executive alone makes the appointments notwithstanding the
existence of any existing similar constitutional provisions in their Constitu-
tions.

When an argument was advanced in Gupta's case to the effect that
G where there is difference of opinion amongst the Constitutional
functionaries required to be consulted, the opinion of the CJI should have
primacy, since he is the head of the Indian Judiciary and paterfamilias of
the judicial fraternity, Bhagwati, J rejected that contention posing a query,
as to the principle on which primacy can be given to the opinion of one
H constitutional functionary, when clause (1) of Article 217 placed all the
ADVOCATES ASSN. v. U.0.1.[PANDIAN,J.] 851

three constitutional functionaries on the. same pedestal so far as the process A
of consultation is concerned. The learned Judge by way of an answer to
the above query has placed the opinion of the CJI on par with the opinion
of the other constitutional functionaries. The above answer, in our view,
ignores or overlooks the very fact that the judicial service is not the service
in the sense of employment, and is distinct from other services and that B
"the members of the other services ................-::: cannot be placed on a par
with the members of the judiciary, either constitutionally or functionally".
(See All India Judges Association and Others case (supra). There are
innumerable impelling factors which motivate, mobilise and impart
momentum to the concept that the opinion of the CJI given in the process C
of 'consultation' is entitled to have primacy. they are :

(1) The 'Constitution' with the CJI by the President is relatable to
the judiciary and not to any other service.

(2) In the process of various Constitutional appointments, 'consult - D
ation' is required only to the judicial office in contrast to the other
high ranking constitutional offices. The prior 'consultation' en-
visaged in the first proviso to Article 124(2) and Article 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. E

(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 F
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.
G
(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. H
852 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A (5) Article 124 and 217 do not speak in especific terms requiring
the President to consult the executive as such, but the executive
comes into play in the process of appointment of Judges to the
higher echelons of judicial service by the operation of Articles 74 1
and 163 of the constitution. In other words, in the case of appoint-
B ment of Judges, the President is not obliged to consult the execu-
tive as there is no specific provision for such consultation.

(6) The President is constitutionally obliged to consult the CTI
alone in the case of appointment of a Judge to the Supreme Court
as per the mandatory proviso to Article 124 (2) and in the case of
c appointment of a Judge to the High Court, the President is obliged
to consult the CTI and the Governor of the State and in addition
the Chief Just:ce of the High Court concerned, in. case the appoint-
ment relates to a Judge other than the Chief Justice of that High
Court. Therefore, to place the opinion of the CTI on par with the
D other constitutional functionaries is not in consonance with the
spirit of the Constitution, but against the very nature of the subject
matter concerning the judiciary and in opposition to the context
in which 'consultation' is required. After the observation of Bhag-
wati, J in Gupta's case that the 'consultation' must be full and
E effective there is no conceivable reason to hold that such 'consult-
ation' need not be given primacy consideration.

(7) The very emphasis of the word " always be consulted" signifies
and indicates that the mandatory consultation should be unfailingly
F made without exception on every occasion and at every time by
the President with the constitutional consultees.

In the Background of the above factual and legal position, the
meaning of the word 'consultation' cannot be confined to its ordinary
lexical definition. Its context in which the word is used as in our constitu-
G tion.

The foregoing considerable deliberation leads to an inexorable con-
clusion that the opinion of the Chief Justice of India in the process of
constitutional consultation in the matter of selection and appointment of
H Judges to the Supreme Court and the High Courts as well as transfer of
ADVOCATESASSN. v. U.0.I.[PANDIAN,J.] 853

Judges from one High Court to another High Court is entitled to have the A
right of primacy. In sum, the above logical conclusion and our special sense
dictate :

Like the Pope, enjoying supremacy in the ecclesiastical and
temporal affairs, the CJI being the highest judicial authority, has B
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.

No doubt, it is true that under Article 217 the President has to C
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 D
seal" has to make the appointment. In discharging the constitutional func-
tions under Article 124 (2), 217 (1) and 222, the President acts on the aid
and advice of the Council of Ministers with the Prime 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 con- E
stitutionai duties acts on the aid and advice of the Council of Ministers
with the Chief Minister of that State at the head and exercise all his
constitutional functions except in so far as he is by or under the Constitu-
tional required to exercise his functions or any of them in his discretion as
contemplated in Article 163(1) read with Articles 166(3) and 167. To say
in other words, the President exercises his constitutional duty in making F
appointments of Judges to the Supreme Court and the High Courts on the
aid and advice of the Council of Ministers with the Prime Minister at the
head.

Krishna Iyer, J. speaking for himself and Bhagwati, J. and concurring G
with the majority view has pointed out in Shamsher Singh's case (supra)
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." H
854 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A The Governor, being at the apex of the· executive is vested with all
the executive powers of the State (vide Article 154(1) and he is also at the
apex of the State Legislature (vide Article 169). In both the capacities, the
Governor has several functions to perform which include powers and
duties. Therefore, the Governor during the process of 'consultation' by the
B President discharges his constitutional duty in giving his opinion to the
President in the matter of appointment of Judges to the High Court of his
State on the advice of Council of Ministers with Chief Minister at the head.
Therefore, the executive of the Union while advising the President and the
executive of the State while advising the Governor in the discharge of their
C duty (as the case may be) in giving their opinion during the process of
'consultation' perform an important role.

Under the proviso, introduced by the Constitution (Forty-fourth
Amendment) Act, 1978 to Article 74 (1), the President can require the
D Council _of Ministers to reconsider such advice either generally or other-
wise, but the President cannot dispense with the advice rendered after such
reconsideration and is bound by the advice. Therefore, nothing is left to
the discretion of the President under this Article in contrast to Article
163(1) which expressly excepts certain matters in which the Governor is,
by or under the Constitution required to act in his discretion. In case, the
E 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 other-
wise. 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
F 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 Kingm m England, he will
G 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
H only in the last resort that he much accept their final ad-
ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 855

vice................... The President of India is not at all a glorified A
cipher. He represents the majesty of the State, is at the apex,
though only symbolically, and has rapport with the people and
parties, being above politics. His vigilant presence makes for good
government if only he uses, what Bagehot described as, 'the right
to be consulted, to warn and encourage'. Indeed, Art. 78 wisely B
used, keeps the President in close touch with the Prime Ministers
on matters of national importance and policy significance, and
there is no doubt that the imprint of his personality may chasten
and correct the political government, although the actual exercise
of the functions entrusted to him by law is in effect and in law C
carried on by his duly appointed mentors, i.e. the Prime Minister
and his colleagues. In short, the President, like the King, has not
merely been constitutionally romanticised but actually vested with
a pervasive and persuasive role."

Thus, it is seen that the President has no discretionary powers as in J)
the case of the Governor even though the discretionary power of the
Governor is only a small strip, with which we are not very much concerned
in this case. The president is required to perform his administrative duty
under the Constitution, the performance of which requires his formal
approval or seal and in respect of which nothing is left to his discretion E
even if the character of such constitutional functions is often tinged with a
political flavour. The result of what we have arrived at is that the power of
the President to appoint a Judge does not prevail over the authority of the
executive but is confined purely to the executive's discretion.
F
Even though all the constitutional functionaries have their own con-
stitutional duties in making appointment of Judges to the superior
judiciary, the role of one of the principal constitutional functionaries,
(namely, the judiciary) is incontrovertibly immeasurable and incalculabe.
The task assigned to the judiciary is no way less than those of other
functionaries - legislative and executive. On the other hand, the respon- G
sibility of the judiciary is of a higher degree. As frequently said, judiciary
is the watch dog of democracy, checking the excessive authority of other
·constitutional functionaries beyond the ken of the Constitution. It cannot
be disputed that the strength and effectiveness of the judicial system and
its independence heavily depends upon the calibre of men and women who H
856 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A preside over the judiciary and it is most essential to have a healthy
independent judiciary for having a healthy democracy because if the judi-
cial system is crippled, democracy will also be crippled.

Iii 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
B 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 iaeologies. This motivated selection
of men and woman to the judiciary certainty undermines public confidence
C in the rule of law and resultantly the co11cept of separation of judiciary
from the executive as adumbreated 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
D satisfying the constitutional requirements. As it has been pointed out in
Gupta's case that the judiciary m?y be the weakest among the constitutional
functionaries, for the simple reason that it is not possessed of the long
sword (that is the power of enforceability of its decisions) or the long purse
(that is the financial resources), but if the opinion of the executive is to
prevail over, the opinion of CJI in matters, concerning judiciary on account
E of that reason, then the independent judiciary which is a power of strength
for all - particularly for the poor, the downtrodden and the average person
cofronting the wrath of the Government will be a misnomer.

It will be quite appropriate in this connection to recapitulate the view
expressed by Sir Winston Churchill emphasising the independence of
F
judiciary in a parliamentary debate before the House of Commons in the
year 1954 which reads thus:

"The Judge has not only to do justice between man and man. He
also - and this is one of the most importantfunctions considered
G incomprehensible in some large parts of the world - has to do
justice between the citizens and the State. He has to ensure that the
administration conforms with the law, and to adjudicate upon the
legality of the exercise by the executive of its powers."

H (emphasis supplied)
ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 857

The above view as to the need of restraint upon executive appoint- A
ment of judges has been emphasised and re-emphasised by Sir Garfield
Barwick, Chief Justice of Australia in his suggestions as to the manner of
selection of Judges, which reads thus :

"In my view, the time has arrived in the development of this B
community and of its institution when the privilege of the Executive
Government in this area should at least be curtailed. One can
understand the reluctance of a government. to forgo the element
of patronage which may inhere in the appointment of a Judge. Yet
I think that long term considerations in the administration of justice
all for some binding restraint of the exercise of this privilege ............ C

It is not for me to express here my own preferences. It should
suffice that I say with a degree of emphasis that the time is here D
when some restraint should be placed upon and accepted by the
Executive Government in its choice of judicial appointees."

No one can den~ that the State in the present day has become the
major litigant and the superior Courts particularly the Supreme Court, have E
become centres for turbulent controversies some of which with a flavour
of political repercussions and the Courts have to face tempest and storm
because their vitality is a national itnperative. In such circumstances, there-
fore, 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 F
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 Twenty-first), 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 G
the £icecutive's power has been accentuated but the desired result has to
bel:n 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 H
858 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A dispensation of justice by Judges of e~inence holding nationalistic view
stronger than other Judges in any other nations, and the resultant triumph
of the Incian judiciary are highly commendable. But it does not mean that
the present system should continue for ever, and by allowing the executive
to enjoy the absolute primacy in the matter of appointment of Judges as
B its 'royal privilege'.

The polemics of the learned Attorney General and Mr. Parasaran
for sustaining the view expressed in Gupta's case, though so distinguished
for the strength of their ratiocination, is found to be not acceptable and
falls through for all the reason aforementioned because of the inherent
C weakness of the doctrine which they have attempted to defend.

The aforementioned discussion leads to an inescapable conclusion
that all the factors mentioned above coalesce to support the view that the
executive will not be justified in enjoying the supremacy over the opinion
D of the CJI in the matter of selection of Judges to the superior judiciary.

The procedure in vogue as regards the formal proposal for filling up
the vacancy in the Supreme Court in initiated by the CJI by recommending
the name of the person found suitable by him to Minister of Law .and
E Justice who if accepts the recommendations, forward the proposal to the
Prime Minister of India who thereupon, if he approves that proposal,
advises the President to issue a formal warrant of appointment. Similarly,
in the case of appointment of a Judge to the High Court, the formal
proposal emanates from the Chief Justice of the High Court and that
F proposed is considered by the Chief Minister of the State duly processed
through the Governor and forwarded to the CJI through the Ministry of
Law and Justice. The Minister of Law and Justice, if he agrees with the
recommendation of the CJI, forwards the proposal to the Prime Minister
who then, if he approves that proposal, advises the President to issue a
formal warrant. So far as the proposal initiated by the CJI for appointment
G of a Judge of the Supreme Court is concerned, if at all there is any
disapproval that will only be from the side of the Central Government. In
case of an appointment of a Judge to the High Court, since the proposal
has to emanate from the Chief Justice of the High Court, the question of
disapproval, if any, may arise either from the State Government, the CJI
H or the Central Government. In a case where the Chief Justice of the High
ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.) 859

Court proposes a name but the State Government turns it down, the A
proposal may not reach the second stage, i.e. 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 en
disagrees on any ground then what would be the outcome of that proposal?
In such a situation, if the consultation of the en is considered to be an B
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 C
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 D
Justice of the High Court as well of the State Government is placed with
all the relevant materials concerning the proposal is in a better position
either to accept the recommendation or reject it for strong and cogent
reasons to be recorded. As pointed out in the earlier part of this judgment,
the merit of a candidate with regard to his/her professional attainments, E
legal soundness, ability, skill etc. can be evaluated only by the Chief Justice
of the High Court in the matter of appointment of Judges of the High
Court and by the CJI in the rn:1tter of appointment of a Judge to the
Supreme Court. However, since the judiciary does not have sufficient
machinery of its own to check the antecedents and background of a F
candidate, the Chief Justice of the High Court and the CJI may not be in
a position to express any opinion about the conduct, character and antece-
dents of the candidate. But the Government with its powerful machinery
can check the antecedents and background of the candidate and give its
opinion on that aspect. Therefore, when a recommendation of the Chief
Justice of a High Court comes to the CJI with all particulars including the G
background of such candidate, he will be in a better position on examina-
tion of all the materials placed before him, to evaluate the fitness of the
candidate. Therefore, in all circumstances, the opinion af the CJI is entitled
to have the right of primacy in the matter of selection of judges to the
H
860 SUPREME COURT REPORTS [1993J ~Uh .'.S.C.R

A Supreme Court as well as the High Courts.
Whil: proviso to Article 124(2) contemplates the consultation with
i.he CJI by the President, Article 217(1) contemplates the consultation of
the Chief Justice of the High Court concerned in addition to the opinion
of the CJI and the Governor of the State. But these two Articles do not
B require the CJI and the Chief Justice of a High Court in the formation of
their opinion to have a consultative process with the entire body of Judges
of the Supreme Court and High Courts. To say differently, the opinion
sought by way of consultation is not th~ opinion of the entire body of the
Court concerned, as embodied in Article 235 of the Constitution which
C vests 'Control over subordinate courts' 'in the High Court'. Notwithstand-
ing this legal position, in order to have a pragmatic approach to matters
relating to appointments of Judges to the Supreme Court, it would be a
healthy practice as a m<:>tter of prudence that the 01 given his opinion on
-
a consultative process by taking into account the views of two senior-most
D 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 appoint-
ment of Judges to the High Courts, it would be better if the Chief Justice
E 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 ofthe
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
F views of his colleagues in the Supreme Court who are likely to be conver-
sant 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 way of the President
consulting, in his discretion, such of the Judges of the Supreme Court, and
G of the High Courts in the states while considering the recommendation
made by the 01 for appointment of a Judge to the Supreme Court. On
the other hand, the opinion so expressed by the 01 through such a
consultative process, would be of much assistance to the President in
forrning his independent opinion.
H
ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 861

The next key issue involving grave an : far reaching doubts is whether A
the President is bound by the opinion of the CJI under all circumstances
in view of the primacy to be attached to the opinion of the CJI and whether
the president has or has not the right of vetoing the opinion of the CJI for
weightly reasons to be recorded and communicated to the CJI. Since this
issue has been well considered and answered by my learned brother, J.S. B
Verma, J with whose opinion, I concur, I feel that it is not necessary to
launch any more discussion on this point except saying that when the 01
disapproves the proposal after the application of his mind on due con-
sideration of all the materials placed before him with which the other
consultees of the Supreme Court also agree, that opinion of the OJ C
deserves acceptance at the hands of the President of India. If for any other
potent reasons, the President forwards all materials available with him
which influenced his mind to take a contrary view requesting the en to
reconsider his opinion and the OJ expresses the same opinion of disap-
proval, after consulting his colleagues, then the opinion of the en should
prevail and that candidate is not appointed. In ally exceptional case, for D
weighty and cogent reasons indicating that the recommendee is not suitable
for appointment, that appointment recommended by the 01 may not be
made. However, if the stated reasons are not acceptable to the 01 and the
other Judges who )lave been consulted in the matter, and the recommen-
dation by the 01 is reiterated, the appointment shall be made. E

Has the executive got the right of proposing the candidates for the
Judgeship?

In this connection, we would like to cogitate an important issue as to
whether the executive also has got a right of proposing the candidature for
F
the judgeship to the Supreme Court and High Courts or whether the
executive is totally debarred from exercising such right.

We have already observed that by convention and practice, the
initiation of proposal for judgeship is to be made only by the 01 whose G
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 01 or H
862 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A Chief Justice of the State and that if such a right of initiation by the
Government is recognised and accepted regarding the judicial appoint -
ments then it will not be violative of the well accepted long standing
practice but also destructive of the independence of the judiciary.

B 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
C is conditioned by the obligation to consult the High Court. In practice, the
High Court selects the candidates by an interview and sends a panel to the
Government from which the required strength of the candidates is selected
and appointed by the Governor but after the appointment, the entire
"control over the district courts and courts subordinate thereto including
D the posting and promotion of, and the grant of leave to, persons belonging
to the judicial service of State and holding any post inferior to the post of
district judge" is vested in the High Court.

On cogitation of this problem, we are of the view that there will be
E not unconstitutionality or illegality in making proposals and that such
proposals will not be violative of the existing practice or opposed to the
public policy. Indeed the Central Government which is accountable to the
people should have the right of suggesting the names of the suitable
candidates with sterling character for consideration to the CJI for
F Judgeship of the Supreme Court and to the Chief Justice of a State to that
High Court. Similarly, the State Government which is also equally account-
able to the people should have the right to suggest the names of candidates
for consideration to the Chief Justice of its State. The above view is based
on the following reasons :

G (1) In the context of the plurastic society of India where there are
several distinct and differing interests of the people with multi-
plicity of religion, race, caste and community and with the plurality
of culture brought together and harmonised by the Constitution
makers by assuring each section, class and society 'equality of
H status and of opportunity, it is inevitable that all people should be
ADVOCATES ASSN. v. U.O.I. (PANDIAN, J.] 863

given equal opportunity in all walks of life and brought into the A
mainstream so that there may be participation of all sections of
people in every sphere including the judiciary.

(2) The Government which is accountable to the people has its
constitutional obligation to treat all alike and afford them equal B
opportunity in all spheres including the superior judiciary.

(3) It is essential and vital for the establishment of real par-
ticipatory democracy that all sections and classes of people, be
they backward classes or scheduled castes or scheduled tribes or
minorities or women, should be afforded equal opportunity so that C
the judicial administration is also participated in by the outstanding
and meritorious 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 D
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 deserv-
ing and worthy legal practitioners other than those who have
appeared before him or whose names alone have brought to his E
notice by his <:onsultees. 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 Governmt<nt may be in a
position to come to know about those candidates from other source
or through its powerful machinery.
F

(5) There may be most meritorious and suitable candidates prac-
ticing in forums other than the the High Courts. Theref9re, 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 G
form his consultees. In such cases, the Government may be in a
position to know the candidates and bring the names of such
persons to the notice of the Chief Justice. In the present day, when
Chief Justices are being transferred from one state to another, they
may not be in a position atleast for some period, to know per- H
864 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A sonally about the candidates unless he is well informed from other
sources.

(6) It cannot be gainsaid that there is a general grievance that
suitable candidates for judgeship who are at the grassroot level of
society are inexcusably neglected from being considered for judi-
B cial office for one reason or another. Therefore, the Government
will be justified in proposing the names of those candidates to the
Chief Justice concerned from the neglected section or class along
with others· whom the Government thinks fit and suitable to be
considered for appointment of Judges.
c
It may be worthy to note that even in well advanced countries like
U.S.A. or United Kingdom, in practice, regional, social and racial repre-
sentations are kept in view in making appointments of judges to superior
judiciary, without of course sacrificing merit.
D
I would like to emphatically declare that the above view of mine
should not be construed as a plea for reservation or quota system, of any
kind, but it is expressed only with the sole object of attracting the best in
judicial talent from all sections of society on equal footing and bringing
E them within the zone of consideration by the concerned Chief Justice.

I am emboldened to express this view because with the years or
experience for nearly two decades at the Bar and two decades on the
Bench and with knowledge and experience I have gained so far about the
manner and method of selection of Judges I had opportunity to notice that
F on few occasions, the candidates have been initiated for judgeship either
on regional or caste or communal basis or on extraneous considerations.
There have been complaints, which cannot be easily brushed aside that
some of the recommendations have been tainted with nepotism and favour-
tism. No doubt, there is an abundance of sermons, preachings and teach-
G ings that the selection and initiation of candidates for judgeship should be
free extraneous consideration, nepotism and favourtism - yet can it be said
that in reality, such high flown sermons are implicity followed by all
including some of the preachers? Can it be said that anyone is exempted
from following such sermons and preachings or anyone enjoys any im-
munity therefrom. Regretably, it is a fact of life that some have followed
H such homilies more in the breach than in their observance. Even today,
ADVOCATESASSN. v. U.O.I.[PAND IAN,J.) 865
1

there are complaints that generations of men from the same family or caste, A
community or religion, are being sponsored and initiated and appointed as
judges, thereby creating a new "theory of judicial relationship."

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 B
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."

As rightly pointed out by Dr. B.R. Ambedkar, "the Chief Justice is a
c
man with all the failings, all the sentiments and all the prejudices which we
as common people have ................."

The Eightieth Report of the Law Commission on this aspect of matter
has stated thus : D

"Criticism has occasionally been levelled that the selection has not
been proper and has been induced by ulterior considerations."

Having stated so, it has lamented that a person appointed not on E
merit but because of favourtism or other ulterior considerations can hardly
command real and spontaneous respect from the bar.

In Gupta's case, Bhagwati, j has stated, ''We are all human beings
with our own likes and dislikes, our own predelictions and prejudices and
our mind is not so comprehensive as to be able to take in all aspects of a F
question at one time and moreover sometimes, the information on which
we base our judgments may be incorrect or inadequate and our judgment
may also sometimes be imperceptibly influenced by extraneous or ir-
relevant considerations...................... it is unwise to entrust power in any
significant or sensitive area to a single individual, howsoever high or G
important may be the office which he is occupying."

I venture to express that the right of entry into superior judicial office
is not the exclusive prerogative of any particular coterie or privileged class
or group of people. To say differently, it is neither inheritable nor a matter
patronage. H
866 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A The above view of mine regarding the inadequate representation of
various sections of people is neither illusory nor imaginary but is the actual
and real existing fact and it is fully fortified by the following statements
made in the Parliament by the Minister of Law, Justice and Company
Affairs pertaining to the OBCs, STS, SCs and women Judges in the
B Supreme Court and High Courts.

s.TATEMENTINREPLYTO PARTS (a) & (b) OF LOK SABHA
UNSTARRED QUESTION NO. 1410 FOR ANSWER ON 4TH
AUGUST, 1993.

c AS ON 20.5.1993
Number of Judges No. of
S.No. High Court Belonging to Women
SC ST Judges

D 1. Allahabad 3 - 1

'
2. Andhra Pradesh - 1 1
3. Bombay 4 - 1
4. Calcutta - - 2
5. Delhi - - 2
E 6. Gauhati - 3 1
7. Gujarat 1 - -
8. Himachal Pradesh - - 1
9. Jammu & Kashmir - - -
F 10. Karnataka 2 2 -
11. Kerala 1 - 1
12. Madhya Pradesh - - -
13. Madras 2 - 1
14. Orissa - - 1
G 15. Patna (Do not maintain official record) 1
16. Punjab & Haryana - - 1
17. Rajasthan - 1 1
18. Sikkim - - -
TOTAL 13 7 15
H
ADVOCATES ASSN. v. U.O.I. [PANDIANs J.] 867

Statement in reply to parts (a), (b) (c) & (d) of Lok Sabha Unstarred A
Question No. 4742 for 31.3.93 regarding sanctioned strength of Judges
in High Courts and Supreme court.

As on 1.1.1993
B
s. High Court Sane- No. of No. of Source of ap- Judes belonging
No. tioned Judges posts nointment to
strength in posi- vacant Bar Service SC Sf OBC
(Per-" lion
manent/
Addi-
tional) c
1 2 3 4 5 6 7 8 9 10
1. Allahabad 70 66 4 44 22 3 - 2
2. Andhra Pradesh 26 24 2 15 9 - 1 3
3. Bombay 54 47 7 32 15 4 - 4
4. Calcutta 46 37 9 23 14 - - - D
5. Delhi 30 25 5 17 8 - - -
6. Gauhati 16 11 5 7 4 - 3 -
7. Gujarat 30 27 3 17 10 1 - -
8. Himachal Pradesh 8 5 3 4 1 - - -
9. Jammu & Kashmir 10 9 1 5 4 - - - E
10. Kamataka 30 21 9 12 9 1 2 14
11. Kerala 24 23 1 15 8 1 - 8
12. Madhya Pradesh 30 26 4 17 9 - - -
13. Madras 28 25 3 18 7 2 - 11

-
F
14. Orissa 14 13 1 9 4 - -
15. Patna 35 32 3 22 10 - - -
16. Punjab & Haryana 33 29 4 18 11 - - -
17. Rajasthan 25 22 3 14 8 ·- 1 -

18. Sikkim 3 1 2 - 1 - - - G
TOTAL 512 443 69 289 . 154 12 7 42,

Supreme Court 26 23 3 - - (1J N.A N.A.

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

A 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.

As per the second statement, as on 20.5.1993, out of the total strength
B 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
C Judges.

Though the strength of the Judges belonging to OBCs as shown in
the statement (as on 1-1-93) may or may not reflect the correct position at
the present moment, we can safely assume the percentage of such Judges
D to be not exceeding 10% of the total sanctioned strength. Likewise, the
percentage of the Judges belonging to SCs and STs put together does not
exceed 4% as per the late3t statement dated 20.5.93. So far as women
Judges are concerned, their strength as on 20.5.93 does not exceed 3%.

However, unpalatable the above scenario may be to some, it is
E nevertheless a ground reality. Our democratic polity is not only for any self
perpetuating oligarchy but is for all people of our country.

If the vulnerable section of the people are completely neglected, we
cannot claim to have achieved real participator democracy. Therefore,
F there is every justification for the Government to forward lists of can-
didates belonging to diverse sections of the people to the Chief Justice
concerned, who has to ultimately scrutinise the list and take his decision
on the merit of the candidates without giving room for any criticism that
the selection was whimsical, fanciful or arbitrary or tainted with any
G prejudice or bias. It is open to the Chief Justice of the High Court to get
more particulars from the Government before taking any decision in this
regard. Once the decision is taken by the Chief Justice of a State and the
list is forwarded to the 01 then the opinion of the CJI based on the
materials placed before him, should have the primacy.

H I feel that it is not necessary to dwell any more on this aspect except
ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.) 869

to say that to speak alone with my conscience will be judgment enough for A
me.

Fixation of Judge Strength

Article 124 deals with the establishment and constitution of Supreme
Court. Sub-clause (1) of that Article reads : B

"There shall be a Supreme Court of India consisting of a Chief
Justice of India an, until Parliament by law prescribes a larger
number, of not more than seven other Judges."
c
The Judge strength of the Supreme Court originally fixed in the
Constitution as no more than seven Judges besides the CJI has been raised
to 'thirteen' by the Supreme Court (Number of Judge) Amendment Act,
1960 and again increased to "seventeen" by the Supreme Court (Number
of Judges) Amendment Act, 1977 and subsequently it was once again D
increased to "twenty-five" by Act 22 of 1986. Consequent upon the peri-
odical revision, at present, the number of puisne Judges stands at twenty
five.

Article 216 which deals with 'Constitution of High Courts' reads :
E
"Every High Court shall consist ofa Chief Justice and such other
.fudges as the President may from time to time deem it necessary
to appoint."

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 F
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 G
High Court is no doubt an executive function entrusted by Article 216 of
the Constitution as a mandatory obligation to the Preside~t, that is the
Government of India. Hitherto, the existing procedure is that the Govern-
ment of India has to decide in exercise of its judgment as to what shall be
the strength of Judges in each High Court upon consideration of various' H
870 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

[
A factors and as to how many permanent Judges or how many additional
Judges are necessary to be appointed in a particular High Court. But there
are no judicially manageable standards for the purpose of controlling or
guiding the discretion of the Union of India in that respect. Therefore, the
questions are (1) whether there are any standards or norms on the basis
B of which the Government of India can fix the Judge strength; (2) whether
the opinion of the CJI, requesting the President to review the Judge
strength in .a High Court deserves greater weight and (3) whether this issue
of fixation of Judge strength is justiciable. There cannot be any mathemati-
cal formula to fix the Judge strength either on the pendency of cases or on
C the average rate of disposals per Judge per year. However, there must be
a periodical review of the Judge strength of the Supreme Court and every
High Court with reference to the felt-needs for disposal of cases having
regard to the backlog and expected future volume of cases.

Successive Law Commissions of India have expressed their grave
D concern more often than not about the Judge strength of the High Courts
and made recommendations for increase of such Judge strength, but the
implementation of the recommendations of the Law Commissions is tardy
and more often ignored.

E It is relevant to not that the Law Commission chaired by Mr. Justice
D.A. Desai in its 120th Report has examined the problem concerning "the
scandalous delays in judicial administration" and stated in its first interim
report dated 31.7.87 that though the previous Law Comini.ssions had ex-
amined this problem, they "have not given the necessary impetus for a
F comprehensive restructuring of judici;tl administration in India" and gave
its primary answer to this problem, stating that it "is at once inescapably
both political and technical" - 'political' in the sense that "it includes the
overall lack of attention to this problem on the part of political parties, free
press, social activists and the Bar", and " none of these groups shown any
effective will to campaign for adequate man power planning for the Indian
G Judiciary", and 'technical' in the sense that "the developing science of man
power planning has not attracted the attention of policy opinion makers in
the field of administration of justice in India." After answering some
'illustrative question', posed for its considerations, the Commission con-
cluded that the "report will invoke sufficient parliamentary, public and
H specialist discussion in order to assist a viable and comprehensive man
ADVOCATESASSN. v. U.0.1.(PANDIAN,J.] 871

power planning for the Indian Judiciary." A

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 hierar- B
chical 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 C
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 be filed directly before the Supreme
Court.
D
In addition, it may be noted that .law are multiplying faster than over
before. Every year legislative bodies at all levels pass hundreds of new laws,
each of which leads to the issuance cif new rules and sometimes to new
regulations. Consequent upon the increase of new legislations which per-
haps are inevitable in a complex society, there arise corresponding massive E
intricate and volatile issues which the executive finds too hot to handle. In
recent decades, people at large, politicians and the executive - whenever
in difficult situation - turn more and more to the judiciary to solve their
problems. In this sense, courts are now looked upon as the 'lightning
arrester' of many complicated and serious problems including the issues
with a touch or politics. Resultantly, judicial responsibility has expanded
F
corresponding to the expansion of the scope of the governmental activities
in general and increase of new kind of litigations involving complex issues,
some kinds of which seem to be political rather than legal in nature.
Consequently, there is heavy work load both in the Supreme Court and
High Courts and the volume of cases is increasing alarmingly. G

In spite of the fact that the flow of litigations is limited to the extent
possible by the 'winnowing process' or 'scanning or screening process' even
at the admission stage and by the policy of 'dejudicialization' -i.e. keeping
issues out of the courts - whereby some disputes are settled through J.{
872 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A arbitration and mediation such as accident claim cases, and divorce matters
etc. through Lok Adalats in which the Legal Aid Committee takes active
participation, the pendency of cases before courts· is mounting and there
is a docket explosion.

B Therefore, the question would be how to meet this challenge and who
is the proper authority to advise the President (the Union Government) to
review the strength of the Courts by revising the Judge strength, so that
this grave situation may be tackled eff~ctively. We have painfully ex-
perienced many a time that the proposals sent by the CJI for increasing
the Judge strength are more often than not turned down by the executive
C on one ground or other stating that the expenditure on administration of
justice is non-plan expenditure or that there is financial restraint or that
there is no sufficient 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
D 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.
E 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 b\lt 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,
F which alone will deliver long range assistance, the superior courts cannot
fulfill their national duties.

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 hand.
Even after taking note of the resounding failure of the past attempts at
G solving the unmanageable and intractable problems concerned with the
judicial administration of the High Courts and Supreme Court, one cannot
be expected to be a silent spectator or an inveterate optimist looking to
the executive in the fond hop of getting invigorative solutions to make the
justice delivery system more effective and resilient meet the contemporary
H needs of society which hope, as experience shows has never been success-
ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 873

fuL The torrential inflow of work in the Supreme Court and High Courts A
is disproportionate to the output as a result of which there is an alarming
volume of arrears. The diagnosis made and the remedial measures for
improving the situations; the recommendations made by various Commis-
sions for the periodical upward revisions of Judge strength of the superior
courts on the basis of the empirical analysis and the manifold means and B
guides offered by various reports for expeditious disposal of cases and for
reduction of the mounting arrears are still being watched with bated breath.
One of the important causes which constitutes the delay in disposal of cases
and the enhancement of arrears is due to the total indolence to the
periodical upward revision of Judge strength. Having a realistic approach
to the raising crescendo of work~load, this Court has on many prior C
occasions expressed its serious concern and called for remedial measures.

This Court in Kanubhai Brahmbhatt v. State of Gujarat, (1987] 2 SCR
314, has expressed it remorse over the long pendency of cases as follows :

"As it is, more than then years old Civil Appeals and Criminal D
Appeals are sobbing for atkntion. It will occasion great misery
and immense hardship to tens of thousands of litigants if the
seriousness of this aspect is not sufficiently realized And this is
no imaginary phobia."
E
Subsequently in P.N. Kumar v. Municipal Corporation of Delhi, (1987]
4 SCC 609 at 610, this Court has observed :

"This Court has no time today even to dispose of cases which have
to be decided by it alone and by on other authority. Large number
of cases are pending from 10 to 15 years. Even if no new case is
F
filed in this Court hereafter, with the present strength of Judges it
may take more than 15 years to is pose of all the pending cases."

No doubt, Judges of Supreme Court and High Courts are over-
worked. The non-filling of vacancies for months, sometime even years G
together, impose a heavy unbearable and intolerable work- load 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 Govern-
ment of fill in the vacancies has operated as an act of cruelty to the existing
Judges to carry on under this unbearable burden. H
874 SUPREME COURT REPORTS [1993] Slif'P. 2 S.C.R.

In Subhash Shanna's case (supra) this Court realising this aspect of
the matt,:r has expressed its opinion in the following words :
I

"For its sound functioning, it is, therefore, necessary that there
must be in efficient judicial system and one of the factors for
B providing the requisite efficiency is ensuring adequate strength."

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
C of t!1e 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 justice delivery system.
Any structure to be internally sound and externally long lasting must be
constructed from the foundation. Therefore, this problem of tacking ar-
D rears of the cases as well as speedy disposal of cases, which is a require-
ment of Article 21 is a concern of the CJI as well as the Chief Justices of
the High Courts. Therefore, in making the periodical review of the
Judge strength of the superior courts, particularly the High Courts, the
President must attach greater weight to the opinion of the CJI and the
E Chief Justice of the High Courts and that exercise must be performed with
due dispatch.

Any proposal made by a Chief Justice of the High Court for increas-
ing the Judge strength of his concerned Court must be routed through the
F CJI, who on such recommendation has to express his opinion either by
giving his consent or modifying the recommendation or otherwise for
sufficient and sound reasons and forward the same to the President. Once
the CJI has concurred with the proposal, then the Government should
accept that proposal without putting any spoke in the wheel or disapprov-
ing it. As we have figuratively stated even at the prefatory not of the
G judgment, the primary right of proposal of any celebrated judicial struc-
tural reforms as well as reforms by the Constitution and composition of
the Court is to vest only with the judiciary and judiciary alone because
those reforms are concerned only with the judiciary. In this context, we
wish to recapitulate the conclusion Nos. 5 and 30 arrived at by the 14th
H Report of the Law Commission Vide para 82 at page 105 :
ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 875

"(5) Any proposals made by the Chief Justice of a State for A
increasing the strength of the High Court, if it has the concurrence
of the Chief Justice of India, should be accepted without demur
or delay.

(30) The strength so fixed should be reviewed at intervals of two B
to three years."

In the background of the above factual position, let us examine the
question whether the issue relating to the fixation of Judge strength is a
justiciable one or not. In Gupta's case Bhagwati, J dealt with this question C
and ruled:

"What should be the number of Judges necessary to be appointed
in a particular High Court must essentially remain a matter within
the discretion of the Government of India and if the Government D
of India does not appoint sufficient number of judges, the appeal
must 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." E

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 F
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 G
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." H
876 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A The learned Judge, therefore, ruled that mandamus could be issued
to the Government to review the strength of permanent Judges to be
appointed in each High Court on the basis of the work-load.

Tulzapurkar, J expressed his opinion holding:

B "On a consideration of the two relevant articles, namely, 216 and
224 (1) it seems to me quite clear that Article 216 unquestionably
casts a mandatory obligation on the President (appointing
authorit:y) to provide adequate strength of permanent Judges in
every High Court to cope with and dispose of its normal business
C and further to review periodically such permanent strength. The
word "shall" and the further words "such other Judges as the
President may from time to time deem it necessary to appoint"
occurring in the article are a clear pointer in that direction."

D The leaned Attorney General has submitted in his written arguments
that fixation of Judge strength is no justiciable.

As we have found that duty cast upon the President under Article
216 is a mandatory obligation, the failure to perform this obligation will
certainly result in negation of the rule of law by the law' delay as opined
E by my learned brother, J.S. Verma, J. and hence it must be justiciable.
Accordingly, such failure to perform that mandatory duty is justiciable to
compel performance of that duty to the extent and the manner indicated
in his separate judgment. Further, as pointed out by him (J.S. Verma, J.)
the area of justiciability does not extend further to enable the Court to·
F review and fix the actual Judge strength itself, but it can require the
performance of that exercise in accordance with the recommendation of
the CJI.

Trans[er of Judges

G With regard to the interpretation of Article 222 regarding transfer of
Judges from one High Court to another, I entirely agree with the reasoning
and conclusion arrived at by learned brother, J.S. Verma, J.

CONCLUSIONS

H Though I have given my reasons separately, as indicated even at the
ADVOCATESASSN. v. U.O.I.[PANDli\N,J.] 877

threshold of the judgment, I am in agreement with the conclusions of my A
learned brother, J.S. Verma, J regarding the process of appointment of
Judges, initiation of the proposal for appointments and the right of primacy
to the opinion of Chief Justice of India in the matter of appointment of
Judges, !ransfer of High Court Judges/Chief Justices of the High Courts,
fixation of Judge-strength, the summary of which is given under Point Nos. B
(1) to (8), (10), (12) and (13).

In view of the above conclusion, the 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 C
stands over-ruled.

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 D
send the proposal for appointments bypassing the Chief Justice concerned.

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 E
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 are duly represented so that there F
may not be any grievance of neglect from any section or class c;f society.

The above conclusions of ours may amount to small step for the law
but a giant leap for real justice.

The questions referred are answered as above and these matters are .G
disposed of accordingly. No order as to costs.

I am grateful for concurrence on the main points.

J.S. Verma H
878 SUPREME COURT REPORTS [1993) SUPP. 2 s.c:R.

·A I have carefully perused your erudite and elaborate opinion in the
Nine Judges' Bench matter, expressing your agreement with the con-
clusions recorded by Brother Verma, J. on his behalf and on behalf of
Brothers Ray, Anand, Bharucha, JJ. and myself on points 1to8, 10, 12 and
13..
B

{YOGESHWAR DAYAL)

I have carefully perused your considered and erudite judgment in the
C Nine Judges' Bench matter and thank you for expressing your concurrence
with the conclusions recorded by Brother Justice Verma on his behalf and
also on behalf of myself and three other Brother Judges on points 1 to 8,
18, 12 and 13.

D
{G.N. RAY)

I have carefully perused your erudite and elaborate opinion in the
Nine Judges' Bench matter, expressing your agreement with the con-
E clusions recorded by Brother Verma J. on his behalf and on behalf of
Brothers Yogeshwar Dayal, Ray, Bharucha JJ. and myself on points 1 to
8, 10, 12 and 13.

F { DR. A.S. ANAND)

I have read with due care your judgment in what I may call the
second Judges' case, May I very respect fully say that I stand by the
judgment written on my behalf and that of Brothers Dayal, Ray and Anand
by Brother Verma, May I also say that I am very gratified that you have,
G broadly, agreed with us and supported our conclusions by your learning
and eloquence.

(S.P. BHARUCHA)
H
ADVOCATES ASSN. v. U.0.1. (AflMADI, J.] 879

AHMADI, J. When a Seven-Judge Constitution Bench of this Court A
commenced the hearing of the writ petitions questioning the constitutional
validity of the circular letter dated March 18, 1981 issued by the then Union
Minister for Law, Justice & Company Affairs, by which thP. consent of
Additional Judges serving in different High Courts and those whose names
were already proposed or may in future be proposed for elevation to the
High Court was sought for the transfer/initial appointment to any other
B
High Court, it was thought that the storm raised by the controversial
circular would eventually subside and the dust would settle down 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 C
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 D
Additional Judges of the High Court. A learned SingJe 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 E
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 Writ Petition on the same day on which the circular was
issued but amended the same with a view to assailing the circular.
Meanwhile, it appears orders regarding the transfer of Mr. Justice M.M.
F
Ismail, Chief Justice of the High Court of Madras, as Chief Justice of the
High Court of Kerala, came to be issued. This order was challenged by way
of a Writ Petition under Article 32 of the Constitution in this Court. Two
other Writ Petitions were filed in the Madras High Court questioning the
transfer of Mr. Justice M.M. Ismail. Since, in the meantime, Mr. Justice
K.B.N. Singh, Chief Justice of Patna High Court, was transferred as Chief G
Justice of the High Court of Madras, the said transfer was also challenged
in the said two Writ Petitions. Similarly, two advocates practising in the
High Court of Patna also challenged the constitutional validity of the
transfer orders concerning Mr. Justice M.M. Ismail and Mr. Justice K.B.N.
H
880 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A Singh. All these eight Writ Petitions were transferred to this Court under
Article 139-A of the Constitution. There was yet a Special Leave Petition
No. 1509 of 1981 directed against the summary rejection of a Writ Petition
by the Patna High Court challenging the constitutional validity of the order
of transfer of Mr. Justice K.RN. Singh which was pending before this
B Court. Both the groups of Writ Petitions, those questioning the constitu-
tional validity of the disputed circular and those questioning the con-
stitutionality of the transfer orders were heard together by the Constitution
Bench. The Writ Petition filed by Shri S.P. Gupta was treated as the lead
petition.

C A preliminary objection was raised on behalf of the respondents to
the maintainability of the Writ Petitions on the ground that the petitioners
who were lawyers practising in different Courts had no locus standi to
maintain Writ Petitions. This contention was brushed aside by the Con-
stitution Bench on the ground that they were vitally concerned with the
D independence of the judiciary and the exercise of power to appoint Judges
to the High Court. Since the question of locus standi has not been raised
before us we need say no more in that behalf.

Several issues were raised before the Constitution Bench. The pivotal
issue related to the content of the concept of judicial independence. It was
E the kingpin around which the submissions concerning the other issues
revolved. The 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
F 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
G 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 con-
sidered butit is unnecessary to notice them as they have no bearing to the
H points raised before us.
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 881

Before we set out the conclusions recorded on the issues of great A
importance projected before the Constitution Bench, we deem it proper to
give an abridged version of the factual background in which these momen-
tous issues arose for decision. Although the immediate cause for moving
the High Courts was the controversial circular-letter of the Law Minister,
certain other events projected in the writ petition filed by Shri V.M.
Tarkunde in the Delhi High Court need mention. In that petition beside
B
assailing the controversial circular-letter the petitioner also assailed the
practice of appointing additional Judges in the High Courts for short terms.
Three additional Judges of the Delhi High Court who had initially been
appointed for a period of two years w.e.f. March 7, 1979 and whose term
was expiring on the midnight of March 6, 1981 were further appointed as C
additional judges for a period of three months. The petitioner contended
that such short term appointments were not justified having regard to the
language of Article 224 of the Constitution and were in any event subver-
sive of the independence of the judiciary. The petitioner, therefore, sought
a mandamus to direct the Central Government to convert the posts of D
additional Judges into permanent ones. He contended that in any event
since there existed a vacancy in a permanent post, the seniormost of the
three additional Judges should be appointed as a permanent Judges to fill
the said vacancy and the ,term of the other two additional judges should be
extended to two years. The claim made on behalf of the Government that
Article 224(1) only fixes the maximum period of two years at a time and E
does not limit the Government's discretion in the matter of the period for
which an additional judge can be appointed provided it does not exceed
the ceiling of two years regardless of the increase in the court's business
raised the question regarding the true scope and import of Articles 216,
217(1) and 224(1) of the Constitution. In the backdrop of these facts the
F
Constitution Bench by a majority of 4:3 concluded that among the opinion
of the three constitutional functionaries the opinion of the Chief Justice of
India does not enjoy primacy over the other two opinions in the matter of .
appointment of judges. By a majority of 6:1 the court held that on a plain
reading of Article 222(1) it cannot be argued that the consent of the judge
proposed to be transferred is a sine qua non to the exercise of the power G
of transfer conferred on the President. Bhagwati, J. however stuck to his
view in the Union of India v. Sankal Chand Himatlal Sheth & Another,
[1978) 1 SCR 423, that the requirement of consent of the i;:oncerned judge
must be read in Article 222(1) to protect the independence of the judiciary.
H
882 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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- ~xtension
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
B 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 coun-
tenanced 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
C existed compelling reasons which necessitated a short term appointment.
The Court further held that ordinarily if there is a vacancy in the sanc-
tioned strength of permanent judges, there would be no justification for
appointing an Additional Judge. The majority of the judges, however, took
the view that in the absence of judicially manageable standards for control-
D ling or guiding the discretion of the Government for the performance of
the duty under Article 216, a mandamus could not be issued to secure the
fixation of Judge strength for each High Court. However, taking note of
the Court's anxiety at the inordinate delay in filling up vacancies and the
inadequacy of the Judge strength in the context of docket explosion, the
learned counsel for the Union of India assured the Court that the Govetn-
E ment had already decided to increase the number of posts of permanent
Judges in various courts keeping in view the load of work. This, in brief, is
the import of the seven-Judge Constitution Bench decision in S.P. Gupta,
etc. etc. v. Union of India & Ors. etc. etc., [1982] 2 SCR 365, pronounced
on December 28, 1981.
F
. The general belief that the Constitution bench judgment would set
at rest the misgivings and controversy sparked by the letter of the Law
Minister was soon belied. Doubts were expressed regarding the correctness
of the majority view that the opinion of the Chief Justice of India as one
G of the consultees under Article 217(1) of the Constitution was not entitled
to primacy vis-a-vis the other two consultees and that a mandamus could
not issue in regard to the executive function of fixation of judge strength
under Article 216 of the Constitution. Criticism was also levelled against
certain observations made by the majority judges in regard to the concept
of judicial independence. Even the view that the consent of the judge
H proposed to be transferred to another High Court was not a condition
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 883

precedent to transfer under Article 222(1) of the Constitution was ques- A
tioned. This becomes evident from the critical discussion of the issues
arising from the findings of the Constitution Bench in S.P. Gupta's case in
Part III of Chapter XXV of Seervai's Constitutional Law of India, Volume
II, Third Edition (1984). The controversy continued to simmer and the
events that followed the decision in S.P. Gupta's case in regard to judicial B
appointments to superior courts were being closely monitored. 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 Associa-
tion and Honorary Secretary, Bombay Bar Association, respectively, seek-
ing a mandamus commanding the Union of India to fill up the vacancies C
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 D
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 Govern- E
ment at the Centre, the succeeding Attorney General Shri Soli Sorabjee
withdrew the objection and stated that in his view it was Che constitutional
obligation of the Union of India to provide the sanctioned Judge strength
in the superior courts and default, it any, could be remedied by a court's
directive. The two-Judge Bench which heard the submissions felt that not F
sufficient attention was paid to filling up of vacancies in good time and
instead in Kerala Judge strength was actually reduced by two posts without
proper justification. Their Lordship also doubted the correctness of the
majority view in S.P. Gupta's case in this behalf and felt that it required
reconsideration. J'ointing to the fact that an independent non-political
judiciary is crucial to the sustenance of our chosen system, their Lordships G
prima fade felt that the majority view in S.P. Gupta's case not only seriously
detracts from but also denudes the primacy of the Chief Justice of India's
opinion which is implicit in our constitutional scheme. Consistent with the
constitutional purpose and process, it is imperative that the role of the
H
884 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A institution of the Chief Justice of India be recognised as crucial. So
observing, their Lordships directed as under :

"The view which the four learned Judges shared in Gupta's case,
in our opinion, does not recognise the special and pivotal position
of the Institution of the Chief Justice of India.
B
The correctness of the opinion of the majority in S.P. Gupta's case
relating to the status and importance of consultation, the primacy
of the position of the Chief Justice of India and the view that the
fixation of Judge strength is not justiciable should be reconsidered
C by a larger bench."

The first and the third Writ Petitions were disposed of on the statement of
the learned Attorney General but the second Writ Petition filed by the
Advocates on Record Association was kept pending. It was directed that
the papers of the said Writ Petition be placed before the learned Chief
D Justice of India for constituting a Bench of Nine Judges to examine the
aforestated two questions, namely, the position of the Chief Justice of India
with reference to primacy and secondly, justiciability of fixation of Judge
strength, afresh. Accordingly the present Nine- Judge Bench came to the
constituted. The petitioners and their allies (intervenors) contended for a
E reconsideration 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.

The battle lines between the two contesting groups are clearly drawn.
The main weapon in the armory of the petitioners and their allies is
p '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
G 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
H rest in the judiciary. They made a fervent plea that the Court should bear
ADVOCATESASSN. v. U.O.I.[AHMADl,J.] 885

in mind the historical background of the development of this doctrine in A
Britain and should be alive to the long and gruelling struggle which British
Judges had to put up against the Monarch and the sacrifices that strong
willed judges like Sir Edward Coke had to make to realise the dream of
an independent jadiciary, independent from all including the executive and
the legislature. Let their sacrifices not go in vain was the emotive and B
impassioned plea made before us. Counsel submitted we in India inherited
the said noble concept from the Britishers who introduced their judicial
system and common law doctrines in our country and our founding fathers,
wisemen as thr.y were, decided to capsulise it by directing the State 'to take
steps to separate the judiciary from the executive in the public services of
the State'. Counsel for the petitioners and their allies, therefore, argued C
that the constitutional scheme in regard to the selection and appointment
of judges of the Supreme Court and the Chief Justice and Judge of the
High Court and the transfer of the latter must be viewed in the backdrop
of this concept which is the conscience of the Constitution.
D
Shri F.S. Nariman, Learned senior counsel, who opened the submis-
sions on behalf of the petitioners emphasised that insofar as appointments
by the President to non-elective constitutional offices are concerned, it is
only in the case of appointments to the higher judiciary that provision is
made for prior 'consultation' with certain constitutional functionaries in-
cluding the Chief Justice of India. He invited our attention to articles 148, E
155, 280 (1), 316(1), 324(2), 338(1), 344(1) and 350(b) to point out the
language used in regard to appointments to be made by the President to
certain non-elective non-judicial posts. This is so because, counsel sub-
mitted, the framers of the Constitution were alive to the need to insulate
the judiciary to protect its independence. On the assumption that the F
consultees would be in a better position to assess the suitability and
competence of the candidate proposed for appoint111ent, counsel sub-
mitted, that this requirement of consultation with members belonging to
the judicial family and in particular the Chief Justice of India was provided
for in the Constitution with a view to institutionalise the judiciary and make
an autonomous body wholly independent of the executive in its own field. G
Since the concept of judicial independence is inextricably linked or con-
nected 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 H
886 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A 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
B 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 thereby making the
entire process of appointment an integrated one. It is, therefore, difficult
C to imagine that the makers of the suprema lex intended the advise of the
consultees to form a link which could be snapped at any time. If the power
can be exercised only after consultation, consultation must be meaningful
and purposeful which it will not be if it is not made binding on the
executive. Art. 124(2) read as a whole does indicate plurality of consult-
D ation; sq also Article 217(1) and hence if there is a difference of opinion
among the consultees, the Central Government must place the entire
material before the Chief Justice of India and seek his opinion thereon.
Once the opinion is expressed by the Chief Justice of India after weighing
the material placed before him and the view of the other consultees, it is
incumbent on the executive to accept the same view and advise the Presi-
E dent accordingly under Article 74(1) of the Constitution so that the Presi-
dent may acting on that advise based on the opinion of the Chief Justice
of India, make the necessary appointment. In regard to the appointment
of Chief Justice of India, counsel submitted, that there is no provision for
consultation in the Constitution and it is for that reason that a healthy
F convention has developed of appointing the senior most Judge of the Court
as the Chief Justice of India. According to him this convention is in keeping
with the concept of independence of judiciary as it excludes the possibility
of executive interference in the matter of choice of the next Chief Justice
of India. Referring to the affidavit of Mr. S.K. Bose dated 22nd April, 1993
he submitted that the fact that all except 7 appointments out of a total of
G 547 appointments made in the last decade were in accordance with the
opinion of the Chief Justice of India also signifies that barring a few
exceptions even the executive has conceded primacy to the opinion of the
Chief Justice of India. Counsel, therefore, emphasised that the decision of
the majority in S.P. Gupta's case requires re- consideration as their opinion
H
ADVOCATES ASSN. v. U.0.1. [AHMADI,J.) 887

was founded on an erroneous interpretation of the relevant constitutional A
provisions. He also submitted that the independence of the judiciary would
be diluted if vacancies are not filled in promptly and if the Judge-strength
is not revised from time to time as ordained by Article 216 of the Constitu-
tion. 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 B
mandamus can certainly issue commanding it to perform that duty for
otherwise Article 216 will be rendered a dead letter. He, therefqre, 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 des- C
tination through a different route.

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 D
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
weight and should be binding on the President of India. Mr. P.P. Rao E
pointed out that under Article 233 of the Constitution appointments of
person to be District Judges in any State has to be made by the Governor
of the State in consultation with the High Court exercising jurisdiction in
relation to that State. The expression 'district judge' is defined in Article
236(a) of the Constitution. He submitted that in law the appointments are p
made on the recommendation of the High Court which recommendation
is held to be binding on the executive. If that be the understanding of
'consultation' under Article 233 of the Constitution there is no reason why
same meaning or understanding should not be read into the concept of
consultation under Article 124(2) and 217(1). Therefore, submitted coun-
sel, consultation with the executive can only be in respect of the character G
and antecedents of the concerned candidate and not with reference to this
competence and suitability. If there is any difference of opinion between
the Governor and the Chief Justice of the High Court,. the ultimate view
of the Chief Justice of India must prevail as the institutional head. Mr. R.K.
Garg complained that the majority view in S.P. Gupta's case has tended to H
888 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A erode the respect for judges appointed after that decision and has conse-
quently robbed them of the confidence and sense of pride in being mem-
bers of the higher judiciary, so essential for the efficient discharge of his
duties. He submitted that to restore this respect and confidence it is
essential that the majority view in S.P. Gupta's case on the question of
B primacy of the Chief Justice of India is set right. He also submitted that
the delay in making the appointments occasioned on account of executive
interference is unpardonable and the courts cannot and should not be
silent spectators to executive interference, indifference or neglect. He was
also in favour of setting up of a perm~nent body to monitor the judge-
strength from time to time in different High Courts and the Supreme Court
C so that timely revision of judge-strength can be made on the basis of the
recommendation of that body. Mr. S.P. Gupta who had filed the earlier
petition leading to the constitution of Seven-Judge Bench, also supported
the submissions of Mr. Nariman on the question of primacy and said that
the court's power to issue a mandamus for performance of the duty
D 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.

Mr. Shanti Bhushan pointed out that prior to the 42nd Amendment
of the Constitutional in 1976, there was no express provision in the Con-
E stitution 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. Art. 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
p vested in the President which he must exercise either directly or through
officers subordinate to him in accordance with the Constitution. Art. 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
G Constitution. Since matters pertaining to the appointment of Judges of the
Supreme Court and the High Court are not covered under any entry in the
said Lists the exercise of the President's power of appointment falls outside
the scope of executive power and hence the President cannot be held
bound by the advice of the Council of Ministers. Drawing our attention to
the residuary entry in List I, counsel submitted, it cannot cover the field
H pertaining to the appointment of Judges of Supreme Court and the High
ADVOCATES ASSN. v. U.0.1. (AHMADI, J.] 889

Court. That being so, according to counsel, the President cannot be held A
bound by the advise of the Council of Ministers in the matter of appoint-
ments to the superior judiciary. Since the Chief Justice of India is best
equipped to assess the merit, competence and suitability of given candidate
for appointment to high judicial office, the constitutional scheme mandates
that the President must abide by the advise of the Chief Justice of India
and it is in that sense that the latter's opinion must have primacy over the
B
opinions of other constitutional consultees, on the question whether a writ
of mandamus can issue for filling up the vacancies and for fixation of judge
strength. Counsel adopted the submissions made by Shri Nariman. Shri
Ram J ethmalani assigned six reasons in support of the contention that the
majority view in S.P. Gupta's case needs re-consideration. These are : c
(i) no attention, in any case not adequate attention, was paid to
Articles 50 and 51A,

(ii) principles of interpretation valid for statutes were applied in
interpreting the Constitutipn, D
(iii) inadmissible material in the form of speeches of members of the
Constituent Assembly including Dr. Amedakar were used and relied upon,

(iv) it was err.oneously assumed that the President in Articles 124(2)
and 217(1) meant President aided and advised by the Council of Ministers, E
(v) primacy was wrongly denied on the ground that the Chief Justice
of India held a non-elective office which lacked public accountability, and

(vi) the decision in S.P. Gupta case is per incurium.
F
In addition to these submissions he also supported the approach, albeit
with some variations, of Mr. Shanti Bhushan. On the question of the court's
power to issue a mandamus for fixation of j11dge-strength, counsel sub-
mitted that if the judicial system is no manned by judges adequate in .
number and possessed of high integrity and competence, the judiciary will
be crippled and justice will become a teasing illusion and the fundamental G
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 H
890 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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.
(
On behalf of the Union of India Mr. K. Parasaran submitted that
B
while independence of judiciary is indisputably one of the cardinal prin-
ciples 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 inde-
pendence from all external and internal pressures, including executive and
C legislative influence, but that has never been understood to mean that the
head of the State is rendered a rubber stamp in the matter of appointment
of judges to the Supreme Court and the High Court by reading the
requirement of 'consultation' to mean 'concurrence' of the head of the
judiciary. He poinud out that neither Article 124(2) nor Article 217(1)
D conveys the impression that provision in regard to consultation with the
Chief Justice of India was made with a view to giving primacy to the
opinion of the Chief Justice of India. According to him, appointment of
Judges to the superior court under the Constitution is an executive function
and since the executive power vests in the President of India the ultimate
decision must rest with that authority albeit aided and advised by the
E Council of Ministers. Similarly, the Governor is also required by virtue of
Article 163(1) to act in accordance with the aid and advise of his Council
of Ministers. There is no hierarchy amongst the consultees named in
Article 217(1) since the exercise is purely executive in character and not
judicial or quasi-judicial. In the matter of administrative control it must be
p borne in mind that the Chief Justice of India has no administrative control
over the High Courts whereas the High Courts have administrative control
over the subordinate judiciary. It is for that reason that the recommenda-
tion made by the High Court under Article 233 of the Constitution in
regard to the appointment of district judges is trealed differently from the
appointments to be made to the superior judiciary under Article 124(2)
G and 217(1) of the Constitution. In the absence of the principle of hierarchy
in said two Articles no question of giving prim:i.cy to the opinion of the
Chief Justice of India can at all arise. The executive being accountable to
the people through the Parliament has, therefore, been enjoined with the
duty to take the responsibility for the appointment so that if a wrong
H appointment is made it is answerable to the people. If the appointment is
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.) 891

made solely on the opinion of the Chief Justice of India and it is later found A
to be erroneous it will cause avoi\fable embarrassment to the Chief Justice
of India as happened in the case of Shri Kumar Padma Prasad v. Union of
India & Ors., (1992] 2 SCC 428, in which case the appointment of Shri K.N.
Srivastava made with the concurrence of the Chief Justice of India was
struck down by this Court on the ground that the appointee did not possess B
the qualification prescribed by Article 217(2). Counsel, therefore, sub-
mitted that the question of independence of the judiciary is a pos~-appoint
ment guarantee and does not figure at the pre-appointment stage. He
i 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 C
judiciary. So far as our Constitution is concerned, it has taken a middle
course and while conferring the power mi 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 D
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 ~stead of mere 'consultation' was defeated which,
said he, was a positive indication of the intention of the Constituent
Assembly and militates against the contention favouring primacy to be E
accorded to the opinion of the Chief Justice of India. He, therefore,
submitted that it would tantamount to rewriting the Constitution and
usurpu.tion of power if the word 'consultation' is construed to mean
'concurrence' in Articles 124(2), 217(1) and 222(1) of the C:onstitution. He
negatived the contentions of Mr. Shanti Bhushan and Mr. Ram Jethmalani F
on the ground that under the scheme of our Constitution there is no
vacuum so far as legislative power is concerned since if there is no specific
entry in any of the three list in the Seventh Schedule of the Constitution,
the power can always be traced to Article 248 read with Entry 97 in List
I, which confers residuary powers. As regards the contention that a con-
vention has grown over a period of time and has crystallised into a rule G
that no appointment would be made contrary to the view of the Chief
Justice India, he invited our attention to the affidavit of Mr. S.K. Bose
dated 22nd April, 1993 wherein it is disclosed that in the last decade from
1st January, 1983 to 10th April, 1993 in all 547 appointments came to be
H
892 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A made to different Courts out of which 7 appointments (2 in January, 1983,
2 in July, 1983, 1 in August, 1983, 1 in September, 1985 and 1 in March,
1991) were made contrary to the views of the Chief Justice of India
negativing any such hardened convention. He submitted that the endeavour
on the part of the executive to accord with the views of the Chief Justice
B of India should not be construed as the executive having conceded primacy
to the Chief Justice of India. Its true significance is that the executive
attaches great weight to the views of the Chief Justice of India as em-
phasised in S.P. Gupta's case but in certain cases, the number whereof must
of necessity be minimal, departs from his 'views if the situation so demands.
The endeavour of the executive to make the appointments with mutual
C agreement attaching great weight to the views of the Chief Justice of India
shows its desire to avoid conflict as far as possible unless inescapable. In
the end he insisted that the majority view in S.P. Gupta's case lays down
the correct law and no interference is called for. All the Advocates
General, except the Advocate General of Karnataka, have adopted the
D submissions of Mr. Parasaran. The Advocate General of Karnataka has,
however, 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
E 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
F 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.

G Mr. Milon Banerjee, the learned Attorney General, was present in
the Court on 5th March, 1993 when the aforesaid petitions were called on
for hearing before this Bench. At the request of the Court he accepted
notice on the two questions formulated by the Division Bench in Subhash
Sharma's case (supra). Subsequently he was served with a written notice
dated 16th March, 1993 in which four questions were formulated. The
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 893

learned Attorney General states that the four questions formulated in the A
written notice dated 16th March, 1993 are not in conformity with the two
points referred to this Bench by Subhash Shanna's case. On the principal
issue of primacy of the learned Chief Justice of India, the learned Attorney
General submitted that the constitutional provisions in regard to appoint-
ment of judges to the superior court have to be examined keeping in view B
the fact that the consultation contemplated at the pre-appointment stage
would be .of the same intensity as consultation at the post-appointment
stage. He submitted that before entry into the judicial family the executive
has a larger say in the process of consultation than at the post-entry stage
for the simple reason that at the post-entry stage the independence of the
judiciary assumes considerable significance. He also submitted that the C
word 'consultation' is used in contra-distinction to the word 'concurrence'
in Articles 124(2) and 217(1) and hence it would be unfair to construe the
former to mean the latter and thereby confer a veto on the Chief Justice
of India not contemplated by the provisions of the Constitution. He sub-
mitted that consultation at the post-entry stage would entitle a greater D
weight to be given to the opinion of the Chief Justice of India, for example,
under Article 217(3) or 222(1) of the Constitution. Similarly, the word
'recommended' in Article 233(2) has a different connotation from consult-
ation. In fact the.two clauses of Article 233 clearly bring out this distinction.
He also submitted .that the concept of independence of the judiciary
assumes greater importance at the post-appointment stage only and not at E
the pre-app.ointment stage. At the pre-appointment stage the executive has
an equally important role to play in the choice of a candidate for appoint-
ment and it was for that reason that the attempt to substitute the word
'concurrence' for 'consultation' did not find favour with the Constituent
Assembly. The mere fact that normally the executive responds positively to F
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 G
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
H
894 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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
B of one this bench should not disturb that choice by the exercise of review
powers merely because the other view sounds more convincing unless the
interest of public or the like compels such re-consideration. In the present
case, submitted counsel, even the referring judgment does not say that such
a compelling necessary for review has arisen.

C On the question of fixation of judge-strength, he submitted that there
being no judicially manageable standards for the purpose of fixation of
judge-strength it would be unwise to issue a mandamus to the executive as
a number of varying factors with several imponderables enter the decision
making and hence the Constitution has rightly cast the duty on the execu-
D tive under Article 216 of the Constitution. At best in a given case the Court
can, draw the attention of the executive to the need to revise the judge·
strength and leave it to the executive to take an appropriate decision within
a reasonable time. According to him Courts are hardly equipped to adjudi-
cate on such matters which are essentially executive in nature and should,
therefore, exercise restraint. In the end he urged that the Court should
E confine itself to the two issues formulated in Subhash Shanna's Case and
should refrain from going into the other questions as the pleadings are
confined to those two questions only. Since the various State Governments
as well as the Union of India and the various Advocates General were put
to notice to respond to these two questions only, it would be unwise and
p hazardous to go into the other questions which were raised by counsel for
the petitioners and allies across the Bar without specific pleadings thereon.
Any decision that may be rendered on such serious constitutional issues
without proper pleadings would be hazardous and at best merely obiter
and wisdom demands that the Court should refrain from answering those
question. To put it in a nutshell, the learned Attorney General urged that
G the majority view in S.P. Gupta's case does not require re-consideration,
that the concept of primacy of the Chief Justice of India cannot be spelt
out from the constitutional provisions in regard to the appointment of
judges to the superior judiciary and that in any event constitution cannot
mean concurrence and the Chief Justice of India cannot be conferred that
H right of veto in the name of primacy. He submitted that at best when there
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 895

is a difference of opinion between the consultees under Articles 124(2) or A
217(1) the view of the Chief Justice of India may ordinarily prevfill 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 B
the Chief Justice of India can be adopted.

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 C
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 main-
tained 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 D
functionaries that there has been usurpation of power through the process
of interpretation. This is not to say that the judiciary should be unduly
concerned about such criticism but merely to emphasize that the respon-
sibility is greater in such cases. To put it differently where the language of
the Constitution is plain and the words used are no ambiguous, care should
he taken to avoid giving an impression that fancied ambiguities have been E
conjured with a view to making it possible to place a convenient construc-
tion on the provisions. If the words are plain and unambiguous effect must
be given to them, for that is the constituent body's intent, whether you like
it or not, and any seeming attempt to depart therefrom under the guise of
interpretation of imaginary ambiguities would cast a serious doubt on the p
credibility and impartiality of the judiciary. It would seem as if judges have
departed from their sworn duty; any such feeling would rudely shock
peoples' confidence and shake the very foundation on which the judicial
edifice stands. The concern of the judiciary must be to fait)lfully interpret
the Constitutional provisions according to its true scope and intent because
that alone can enhance public confidence in the judicial system. 'The one G
public interest which the courts of law are properly entitled to treat as their
concern is the standing of and the degree of respect commended by the
judicial system' said Lord Keith of Kinkel in Duport Steel Ltd. v. Sirs &
Others, [1980] 1 All England Reporter.529 at 550. We can do no better
than reproduce Lord Scarman's advice ~ the same case at page 551 of the H
896 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A Reporter:

"Great judges are in their different waysjudicial activists. But the
Constitution's separation of powers, or more accurately functions,
must be observed if judicial independence is not to be put at risk.
For, if people and Parliament come to think that the judicial power
B is to be confined by nothing other than the judge's sense of what
is right (off as Selden put it by the length of the Chancellor's foot),
confidence in the judicial system it becoming replaced by fear of
it becoming uncertain and arbitrary in its application. society will
then be ready for Parliament to cut the power of the judges. Their
c power to do justice will become more restricted by law than it need
be, or is today."

Having put ourselves to caution, rather made ourselves conscious of our
special responsibility, we may now proceed to deal with the questions
D posed for our determination.

The concept of separation of powers is a well known fundamental
political maxim which many modern democracies have adopted. Our con-
stitution has not strictly adhered to that doctrine but is does provide for
distribution of powers to ensure tha one organ of the Government does
E 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
p safeguarding the fundamental rights of our citizens and of upholding the
rule of law. Since the Courts are entrusted the duty to uphold the Con-
stitution 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,
G ~daunting courage and determination and resolute impartiality and inde-
pendence who would dispense justice without fear or favour, ill-will or
affection. Justice without fear or favour, ill-will or affection, is the cardinal
creed of our Constitution and a solemn assurance of every judge to the
people of third great country. There can be no two opinion at the Bar that
H an indedendent and impartial judiciary is the most essential characteristic
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 897

of a free society. Even though on the question that our judiciary should be A
independent of he executive and the legislature there is no divergence of
views at the Bar, there was some difference of opinion on the actual
content of the concept. Hence brief look into the historical background of
the development of this concept in our country.
B
It is well-known that the concept of judicial independence in this
country owes its origin to the development of this concept in England. In
England for centuries the Monarch was the repository of all powers and
the courts set up by him were accountable to none except him, he being
an integral part of the system of administration of justice. This as a purely
executive arrangement. However, during the 17th centruy things began to C
change following a clash between the Monarch and the Parliament, each
vying for supermacy. In this tussle for supremacy both sought cover under
law which brought the judiciary into sharp focus since it alone was com-
petent to demarcate the functional boundaries between the privileges of
the Crown and those of the Parliament. It is this situation which gave birth D
to the· doccrine of judicial independence. Both the Crown and the Parlia-
ment realised the significance and the value of an independent judiciary.
Yet the English Parliament was not prepared to loosen its grip over f'he
judiciary and it fell to the lot of Chief Justice Coke to assert the functional
freedom of the judiciary. When Parliament realised that the Crown was
able to assert because of the pleasure doctrine,· it enacted the Settlement E
Act of1700 whereby security of tenure was provided by making it subject
to good behaviour and removal upon address by both Houses of Parlia-
ment. Judges' salaries were to be ascertained and established. Thus the
judiciary in England became independent of the Crown as well as the
Parliament. But the situation was different in British colonies. Even though F
the English judiciary secured independence, 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 wa!i supreme and could enact a law concerning G
colonies which would not be subject to court scrutiny, the unrepresented
America! colonists suspected British intentions. Hence when they attained
freedom they favoured total separation of all the three branches of govern-
ment so that each would operate as a check on the exercise of power by
the . other. The American concept of judicial independence, therefore, H
898 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 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.

Before we deal with our constitutional scheme regarding appoint-
B ments 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 unique
position of three-in-one. He is at once the head of the judiciary, Presiding
Officer (Speaker) of the House of Lords and a member of the cabinet. This
unique position enjoins that he ensure separation of powers and inde-
C pendence of the judiciary. One of his responsibilities is to select and
appoint judges and other judicial officers. To ensure that the appointees
are of the highest professional calibre, integrity and judicial quality, certain
guidelines laid down by Lord Chancellor's office are followed. Appoint-
ments to the High Court and above being by invitation, the principle of
D wide consultation is followed. The views thus obtained are collated and
recorded and after considering the same the proposal is put forward for
appqintment. Lord Justice of Appeal and Judges of the Supreme Court of
England and Wales are appointed by the Queen on the Prime Minister's
recommendation. It will thus be seen that the process of appointment is
essentially an executive one yet no one says that the England Judiciary is
E not independent, in fact it is recognised as fiercely independent.

Under the American system many state judges are elected; of those
that are not, their appointments are subject to legislative concurrence.
However, in the case of Supreme Court judges, the President makes the
p nomination. While the requirements of merit, expertise, independence and
public confidence are universal it is conceded that other factors, such as,
ideology, political compatibility, etc., also figure prominently in the selec-
tion process. During the 1984 Presidtntial Campaign when judicial ap-
pointments were debated, Mr. Justice William Rehnquist is reported to
G have said: " there is no reason in the world why a President should not
........... appoint people....... who are sympathetic to his political or
philosophical principles" and buttressed it by nothing that the President is
the "one official who is elected by the entire nation" and, therefore, the
public has "something to say about the membership of the court".
(Washington Post, October 20, 1984 P.6). Besides political and idealogical
H compatibility, "representativeness" based on race, gender, etc., plays a
ADVOCATES ASSN. v. U.O.I. [AHMADI,J.) 899

measurable role in the choice of candidates. The ultimate aim, it would A
seem, is .to make the court reflective of' America's heterogeneity and
thereby foster legitimacy and credibility for the institution in the eyes of
the people. 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 B
a representative look so that the Court derives legitimacy in the eyes of the
people. The nomination made by the President must of cours~ be con-
firmed 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 C
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 enforc-
ing 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? D
Their concept of judicial independence is clearly of post-appointment
application. Once the nomination is complete and the candidate enters the
judiciary family he must enjoy complete independence, both institutional
and individual, and thyre should be no interference from any source,
whatsoever, in the discharge of his judicial functions.
E
In Australia, judges are appointed by the executive in accordance
with the statute. Appointment to the High Courts and other federal courts
is by the federal government whereas appointment to the state courts is
by the state governments. The appointments are made in the name of the
Governor-General, or the Governor, in council. In reality they are depend-
ent on cabinet d~cisiqns. Once appointed they are independent of the
F
executive. Thus t~~ Australian method of appointments contrasts with the
system prevalent in the United Kingdom and the United States.

In Canada, appointments of judges of the Superior, District and
County Courts in each province, except two, are made by the Governor- G
General. In addition, each of the ten provinces has its own process of
appointment of provincial judges to provincial courts. There is no unifor-
mity but the appointments essentially ar~ by the executive..

In New Zealand, the role of the judiciary in the selection of judges H
900 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A is quite active. The Chief Justice of New Zealand is appointed by the
Governor-General on the recommendation of the Prime Minister who
ordinarily discusses the matter with the Attorney General. The latter seeks
the opinion of the President of the Court of Appeal and, informally, of
some other judges. Where appointments to the High Court are in the
B offing, the Chief Justice prepares a list after consulting the other judges
and makes a recommendation which the attorney General scrutinises. After
making his own inquiries he consults the New Zealand Law Society and in
receipt of a positive response sounds the candidate and on his or her
agreeing the Cabinet is apprised. The Caoinet then makes a formal recom-
mendation to the Governor- General who makes the appointment.
c
In India after the advent of the British, the judicial system underwent
changes. The Courts set up by the East India Company were exclusively
executive. Thereafter a new judicial system comprising three types of courts
came to be introduced in the Prnsidency towns of Bombay, Calcutta and
D Madras. The courts so constituted were replaced by the establishment of
Supreme Courts in the said three Presidency towns. The Chief Justice and
other Judges held 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
E 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 mis-
behaviour 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,
F 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
G the pleasure doctrine. Our founding fathers were aware of these develop-
ments in England, America and British India when they undertook the task
of drafting the Constitution for free India. It will be noticed that even then
the power of appointment was totally with the executive.

H Our Constitution envisages a three-tier judiciary with the subordinate
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 901

courts at the floor level, the High Court at the State level and the Supreme A
Court at the Union level. The provisions in regard to Union Judiciary, i.e.
the Supreme Court, are to be found in Chapter IV, those regarding the
High Courts in the States in Chapter V and subordinate courts in Chapter
VI of Part VI of the Constitution. We may first deal with the provisions
relating to the subordinate courts which comprise Articles 233 to 237. B
Article 233 provides for the appointment of 'District Judges', an expression
defined in Article 236(a). Article 233(1) provides that appointments of
persons to be and the posting and promotion of, District Judges in any
State shall be made by the Governor of the State is consultation with the
High Court exercising jurisdiction in relation to such State. It may be
noticed that consultation is with the entire body of judges constituting the C
High Court and not with a single individual like the Chief Justice of the
High Court. Article 233(2) says that a person not already in service of the
Union or the State shall be eligible to be appointed District Judge if he
has a standing of not less than seven years at the Bar and is 'recommended'
by the High Court for appointment. Under Article 235 the control over D
district Courts and courts subordinate thereto including the posting and
promotion of and the grant of leave to persons belonging to the judicial
service of a State and holding any post inferior to the post of District Judge
shall be vested in the High Court. Article 237 empowers the Governor to
direct that the provisions of this Chapter and any rules made thereunder
shall apply in relation to any class or ·classes of Magistrates in the State as E
the may apply in relation to persons appointed in the judicial service of the
State subject to such exceptions and modifications as may be specified. The
expression "judicial service" is defined under Article 236(b) to mean a
service consisting exclusively of persons intended to fill the post of District
Judge and other civil judicial posts inferior to the post of District Judge. F
On a plain reading of Article 233 it becomes clear that the 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 con-
cerned 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. G

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

A 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 I.

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
B 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 appointed
by the President by warrant under his hand and seal after consult-
c ation 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
years :
D
Provided that ---

(a) a Judges may, by writing under his hand addressed to the
President, resign his office;
E
(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
F by the President to be a Judge of the Supreme Court or by his
being transferred by the President to any other High Court within
the territory of India."

The qualifications for appointment as a Judge of the High Court have been
G specified in clause (2) of Article 217. It provides that the candidate must
have held for atleast 10 years a judicial office in the territory of India or
he must have been an Advocate of a High Court or two or more such courts
in succession for at least 10 years. The provision which was introduced in
clause (c) by the Constitution 42nd Amendment placing a distinguished
jurist in the zone of consideration for appointment came to be omitted by
.H the Constitution 44th Amendment. Thus under Article 217(2) a person who
ADVOCATES ASSN. v. U.0.1. [AHMADI,J.] 903

does not possess the qualifications set out in clause (a) or (b) will be A
eligible for appointment. Clause (3) was inserted by the Constitution 15th
Amendment with retrospective effect. It says that 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. It becomes abundantly clear on a B
plain reading of Article 217(1) that the power to appoint a judge of the
High Court is vested in the President and must be exercised by a warrant
to be issued in that behalf under his hand and seal. This ·power, however,
has to be exercised 'after' consultation with (i) the Chief Justice of India(ii)
the Governor of the State and (iii) in the case of appointment of a judge
other than the Chief Justice, the Chief Justice of the High Court. Once the C
consultation process contemplated under this Article is completeJ, 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 D
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 E
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 : p

"I, AB., having been appointed Chief Justice (or a Judge) of the
High Court at (or of) do swear in the name of God
solemnly affirm that I will bear true faith and allt;giance 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 G
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."

Article 221 lays down the salary to be paid to High Court judges. The salary H
904 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A is specified in the Second Schedule at Item 10. Article 221(2) next provides
that every judge shall be entitled to such allowances and to such rights in
respect of leave of absence and pension as may, from time to time, be
determined by or under law made by Parliament and until so determined
to such allowances and rights as are specified in the Second Schedule. The
B proviso says that neither the allowances of a judge nor his rights in respect
of leave of absence or pension shall be varied to his disadvantage after his
appointment. It is clear from this provision that the judge's salary is
protected by the Constitution and the allowances and pension and other
benefits conferred on him by the High Court Judges (Conditions of Ser-
vice) Act, 1954 are also protected by the proviso, in that, they cannot be
C varied to his disadvantage after his appointment. By virtue of Article 202(3)
(d) the expenditure in respect of the salaries and allowances of judges of
the High Court is charged on the Consolidated_Fund of each State. Then
come to Article 222(1) which reads as under:

"222. Transfer of a Judge from one High Court to another.----(1)
D
The President may, after consultation with the Chief Justice of
India, transfer a Judge from one High Court to any other High
Court."

Sub-clause (2) of that Article provides for payment of compensatory
E allowance to a transferred Judge. Thus the power to transfer a judge from
one High Court to any other High Court is conferred on the President
which he must exercise only after consultation with the Chief Justice of
India. There is no dispute that the consultation must be effective, mean-
ingful and purposive. Article 224 provides for the appointment of addition-
F al and acting judges and Article 224-A permits appointment of retired
judges. The power to appoint additional and acting judges is conferred on
the President. However, 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 ap-
pointment of officers and servants of a High Court is vested in the Chief
G 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
H President or where the power is conferred on the Chief Justice, he has to
ADVOCATES ASSN. v. U.0.I. [AHMADI,J.] 905

exercised it with the President's consent. The scheme of this chapter A
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 consult- B
ation with the Chief Justice of India. Here there is no requirement to
consult the Governor of the State or the Chief Justice of the High Court.
When it comes to appointment of additional or acting judges, Article 224
empowers the President to make the appointment without the requirement
of consultation. But appointment of retired judges can be made under
Article 224-A by the Chief Justice of the High Court with the consent of C
the President. So both the expressions 'consultation' and 'consent' are
used in this chapter.

We may now notice the provision concerning the Union Judiciary.
Article 124(!) provides that there shall be a Supreme Court consisting of
_,' a Chief Justice of India and, until Parliament by law prescribes a larger D
number of not more than twenty-five other judges. Article 124(2) which is
relevant for our purpose may be reproduced at this stage :

"124(2) Every Judge of the Supreme Court shall be appointed by
the President by warrant under his hand and seal after consultation E
with such of the Judge of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty five
years :

Provided that in the case of appointment of a Judge other than F
the Chief Justice, the Chief Justice of India shall always be con-
sulted."

The second proviso to that clause says that a judge may resign his office
or be removed from his office in the manner provided in clauses 4. Clause
2A was inserted by the Constitution 15th Amendment to provide that the G
age of a judge of the Supreme Court shall be determined by such authority
and in such manner as Parliament may by law provide. Clause 3 of Article
124 sets out the qualifications for appointment as a judge of the Supreme
Court. Besides being a citizen of India he must have been at least 5 years
a judge of the High Court or of two or more such courts in succession or H
906 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A for at least 10 years an Advocate of a High Court or of two or more such
courts in succession or is in the opinion of the President a distinguished
jurist. Article 124(4) provides that a Judge of the Supreme Court shall not
be removed from his office except by an order of the President passed after
an address by each House of Parliament supported by a majority of the
B total membership of that House and by a majority of not less than 2/3rd
members of that House present voting on the ground of proved mis-
behaviour 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 :
c
"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,
D
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."

E 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
F 112(3)(d)). No discussion can take place in regard to his conduct in the
discharge of his duties in any state legislature (Article 211) or Parliament
(Article 121), except on a motion for his removal under Article 124(4).
Articles 127 and 128 provide for appointment of adhoc judges and atten-
dance of retired judges with the 'previous consent' of the President. Article
146 provides that the appointments of officers and servants of the Supreme
G Court shall be made by the Chief Justice of India or such other judge of
officer of the court as he may direct. It will thus be seen that even under
this chapter the power of the President to make an appointment is cir-
cumscribed or limited by the requirement of prior consultation. The power
conferred on the Chief Justice of India by Articles 127 and 128 is cir-
H cumscribed by the requirement of previous consent of the President.
ADVOCATES ASSN. v. U.O.l. [AHMADI,J.] 907

The anxiety of our Constitution makers to ensure that justice A
promised in the Preamble of the Constitution is pure and is not any manner
polluted by executive or political interference is writ large on the face of
the Constitution. Extraordinary powers have been conferred on the
Supreme Court and the High Courts under Articles 32 and 226, respec-
tively, manifesting the confidence of the people in the courts' ability to do B
justice. By Article 50 a direction is given to take steps to separate the
judiciary from the executive in the public services of the State. Th.e offices
of the Attorney General and Advocates General have been given constitu-
tional status with a view to making quality legal advice available to the
Union and the States so that they function consistently with the rule of law C
and safeguard public interest. The role of the Public Prosecutor and the
Government Pleader is also to act with fairness to ensure that justice is
delivered according to law. Then recruitment to the judiciary at the level
below the district judges is either through the independent agency of the
State Public Service Commission or through an entrance test organised by
the High Court. Insofar as appointments at the level of district judges is D
concerned, we have noticed that under Article 233 the Governor has to
make the appointment. Article 233 is in two parts, the first part provides
for appointment of a person in the service of the Union or the State to be
made by the Governor in co11$ultation with the High Court and the second
part provides for the appointment of an advocate or pleader or seven years E
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 F
merits and suitability of the candidate is consulted and its view obtained
before the appointment is made. See Chandremouleshwar Prasad v. Patna
High Court & Ors., [1970] 2 SCR 666. Once the appointment is made by
the Governor after consultation with the High Court or on its recommen-
dation and the appointee enters the cadre of district judges he falls within G
the High Court's control under Article 235 of the Constitution. His inde-
pendence 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 and State of
Assam v. Ranga Mahammad & Ors., [1967] 1 SCR 454. It is only in case of
H
908 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A dismissal or removal or reduction in rank to a lower cadre that the High
Court has to seek the Governor's order, he being appointing authority, but
it is settled Iaw that ordinarily he must act on the recommendation of the
High Court.

So far as appointment to the High Court is concerned Article 217(1)
B extracted earlier clearly obliges the President to make the appointment
only 'after' he has consulted the Chief Justice of India, the Governor of the
State and the Chief Justice of the High Court. The article does not provide
any hierarchy amongst the three consultees although according to the
procedure the proposal ordinarily emanates from the Chief Justice of the
C State and thereafter goes to the executive. It is only after the Governor has
cleared it that the Chief Justice of India is consulted. Therefore, before the
Chief Justice of India opines on the proposal he has an opportunity to
sieve the material on the file and to appreciate the view point of the other
consultees. The situation that may arise can be fourfold, namely,
D
(i) all the three consultees agree on the proposal;

(ii) the Chief Justice of the High Court and the Governor do not
agree and the Chief Justice of India agrees with the former;

E (iii) the Chief Justice of the High Court and the Governor do not
agree and the Chief Justice of India agrees with the latter; and,

(iv) the Chief Justice of the High Court and the Governor agree but
the Chief Justice of India does not agree.

F In the first situation is the President agrees there can be no problem
whatsoever but how should the President react in the other three situa-
tions? Is he bound to accept the opinion of the Chief Justice of India in
all the three situation? Is that what is meant when primacy is sought to be
accorded to the views of the Chief Justice of India?

G Let us now move on to Article 124(2) which provides for the appoint-
ment of a Supreme Court Judge. We have extracted the article earlier. It
empowers the President to appoint a judge to the Supreme Court 'after'
consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as he may deem necessary for the purpose. The zone
H of consultation is very wide, he may consult one or more of the Supreme
ADVOCATES ASSN. v. U.0.!.1-\HMADI, J.] 909

Court judges and any number of the numerous High Court judges in the A
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
B
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 Constitu-
tion 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
c
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 situation~ which can emerge are :
D
(i) the President consults the Chief Justice of India alone;

(ii) the President consults the Chief Justice of India an one or two
or more judges of the Supreme Court and their views do not tally;

(iii) the President consults the Chief Justice of India and three Chief E
Justices of the States and their views do not tally; and,

(iv) the President consults the Chief Justice of India and one or more
consultees, and all of them have identical views.
F
If the President agrees with situations (i) and (iv) then there is no difficulty
but what is the President does not agree with those views? Even then is he
bound by the views of the Chief Justice of India? But how should he react
in situations (ii) and (iii)? Is he bound by the views of the Chief Justice of
India? Is that what is understood by the primacy principle? If the view of
the Chief Justice of India is treated as binding will it render the provision G
in regard to consultation in clause (2) of Article 124 nugatory' Again, if
the view is taken as binding on the primacy doctrine, will not the President
be forced to abide by that advice even if it runs counter to the views of
others consulted under clause (2)? If such a situation arises will or will not
the President have the option to go by the advice of other consultees if he H
910 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A finds it more sound and acceptable? It will thus be seen that the question
of according primacy to the views of the Chief Justice of India throws up
many situations which must be kept in view while interpreting the Constitu-
tion.

B From the foregoing discussion it becomes evident that in India
judiciary plays a more active role in selecting judges at all levels than in
other countries. The appointments to the subordinate judiciary must be
made by the Governor in consultation with or on the recommendation of
the High Court as provided by Article 233 of the Constitution. Article 233
is a self-contained provision for appointment as district judge and is in two
C parts; the first clause provides for the appointment of a person who is
already in the service of the Union or the State in consultation with the
High Court while the second clause provides for the appointment of a
persons who has been for not less than seven years an advocate or a
pleader on the recommendation of the High Court. The requirement of
D consultation with or recommendation by the High Court is a must and the
decision has to be taken by the entire body of judges constituting 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
E 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 effec-
F tive 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 disagree-
ment 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
G that the requirement of consultation does no end up as an empty formality
or is not reduced to a mere mockery it is essential that in the difference
of opinion there is an effective interchange of view-points between the two
functionaries so that is able to appreciate the views of the other and there
is a genuine attempt to iron out the creases before a final decision is taken.
H In cases governed by Article 233(2), normally as a .matter of rule, the High
ADVOCATES ASSN. v. U.O.l. [AHMADI, J.] 911

. Court's recommendation must be accepted unless there exist 'good and A
weightly reason' in which case the executive should communicate its views
to the High Court and give the latter an opportunity to react to the same.
See State of Kera/a v. A. Lakshmikutty, [1986] 4 SCC 632. Once the
Governor makes the appointment and the appointee becomes a part of the
judicial family, he is under the protective umberalla of the High Court B
under Article 235 and none except the High Court can taken disciplinary
action against him. See State of West Bengal v. Nripendra Nath Bagchi,
[1966] 1 SCR 771 at 789-790. The ultimate order of dismissal or removal
may be passed by the Governor on the recommendation made by the High
Court based on the outcome of the domestic enquiry. A lesser punishment,
that is, a punishment other than dismissal, removal or reduction in rank, C
can be imposed by the High Court itself but if the punishment recom-
mended is the one falling under Article 311, the order must be made by
the Governor. This position is made clear in the case of Tej Pal Singh v.
State of U.P., [1986] 3 SCC 604 at 610-611. It is, therefore, obvious that in
the matter of selection of district judges, it is the High Court which plays D
a dominant rule for the reason that lot of weight is attached to the views
of the entire body of judges constituting the High Court. It is, therefore,
natural that departure from the opinion of this informed body, which the
Constitution requires to be consulted, can be a rare event and that too for
very strong, cogent and compelling reasons. Even such an eventuality there
must be an effective, purposive and meaningful dialogue with the High E
Court before a final decision is taken by the executive. It is necessary to
realise that the framer of the Constitution have deliberately provided for
consultation with the entire body of judges constituting the High Court and
it is their collective wisdom which adds weight to the opinion transmitted
to the executive and hence it is not surprising that except in rare cases F
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 G
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.

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

A eatlier. 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
B forwards it to the Chief Minister. The Chief Minister scrutinises the
proposal and if he needs any clarification he must interact with the Chief
Justice. If he or the Governor has any suggestion to make or names to
propose they may do so and forward the same to the Chief Justice who
may examine the suggestions and send his response. The Chief Minister
C must then forward the proposal, with the comments of the Chief Justice, if
any, in consultation with the Governor to the Minister of Law & Justice in
the Central Government. The Minister of Law and justice would then
consult the Chief Justice of India and Prime Minister and then forward the
papers with the advice to the President who will thereupon issue the
D warrant of appointment. On a plain reading of Article 217(1) it becomes
clear that the President is empowered to make the appointment 'after'
consultation with the three constitutional functionaries. The Article does
no give any indication of any hierarchy among the three consultees. These
three functionaries are those who are consulted, they have a consultative
role to play in the appointment of a High Court judge but the ultimate
E power of appointment rests in the President who must act in accordance
with Article 74(1) of the Constitution. The power conferred on the Presi-
dent is not an absolute or arbitrary power but the same is checked,
circumscribed and conditioned by the requirement of prior consultation
with the three Constitutional functionaries. The consultation must be com-
F plete, purposive and meaningful and cannot be treated as a mere idle
formality. If the consultation is found to be a mere empty formality without
effective exchange of views, the appointment would be vitiated and the
whole exercise may ultimately turn out to be loves labour lost. Each of the
three constitutional functionaries holds a high constitutional position and
it is difficult to see how, in the absence of express word, it can be said that
G there is a hierarchy envisaged by the said provision. It must be remembered
that the Chief Justice of the High Court must be attributed intimate
knowledge regarding the quality of legal acumen of the members of the
Bar chosen by him for appointment. Since he has the opportunity to watch
the performance of members of the Bar at close quarters, he is best suited
H
ADVOCATES ASSN. v. U.0.1.[AHMADI,J.) 913

to assess the worth of the candidate relating to his legal knowledge, acumen A
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., B
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 C
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 D
certainly be entitled to greater weight since he had the benefit of filtering
the views of the other two consultees on the question of suitability on the
proposed candidate, but can it mean that his view totally eclipse the view
of the others forbidding the executive to evaluate it before formulating its
advice to be tendered to the President? We will leave this as a poser for
the present and proceed to consider the process of appointment under E
Article 124(2) of the Constitution.

We have extracted Article 124(2) earlier. Clause (1) of that Article
provides for the constitution of a Supreme Court of India consisting of a
Chief Justice of India and no more than twenty-five other judge;,. Clause F
(2) provides that every judge of the Supreme Court shall be appointed by
the President by warrant under his hand and seal. The mode of appoint-
ment is the same as in the case of a High Court judge i.e. by warrant under
his hand and seal. But here again the exercise. of power is controlled,
checked and chcumscribed by the need for prior consultation with such of
the judges of the Supreme Court and of the High Courts in the States as G
the President may deem necessary. Reference to the expression 'such of
the judges' must include the Chief Justice of India in the case of the former
and the Chief Justices of the High Courts in the case of the latter. If such
a construction is not placed it would lead to the absurd situation of the
Chief Justices of various High Courts being excluded from the zone of H
914 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A consultation. The Chief Justice of India would, in any case, have to be
consulted by virtue of the proviso to that clause because it mandates that
in the case of appointment of a judge other than the Chief Justice, the
Chief Justice of India 'shall always' be consulted. It is, therefore, obvious
.-
that while the proviso obligates consultation with the Chief Justice of India,
the text of clause (2) stretches out the zone of consultees and leaves it to
B the President to consult one or more from amongst that broad band of
consultees. But consult he must before he makes the appointment. In actual
practice whenever a permanent vacancy is expected or arises in the
Supreme Court, the Chief Justice of India will intimate that fact to the
Minister of Law and Justice and simultaneously forward his recornrnenda-
c tion to fill up the vacancy likely to arise or which has already arisen. On
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 Constitu-
D tion. 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
E the President of the selection. The Presideut will act on that advice and
issue the warrant of appointment. This practice which is hitherto followed
reveals that the Central Government's understanding o( 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
F Court if consultation with the Chief Justice of India is considered sufficient
and no further consultation is deemed necessary. If primacy is to be
accorded to the views of the Chief Justice of India, the views of the other
consultees would become redundant and will at best serve the purpose of
persuading the Chief Justice of India to change his views but if he does not
v
the views of the other consultees will be rendered nugatory. Is this the '
G constitutional intendment?

Before we proceed to deal with the question of primacy, we may first
refer to an attendant circumstance which was used by the learned counsel
for the petitioners and allies to buttress their submission that even the
H Government of India has construed the provision as conferring primacy on
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 915

the Chief Justice of India. This circumstance is the fact that in the last over A
a decade, out of a total of 547 appointments made from 1st January, 1983
to 10th April, 1993 to different Courts, only 7 appointment s (5 in 1983, 1
in 1985 and 1in1991) were made contrary to the views of the Chief Justice
of India which, contend counsel, is speaking evidence of the executive
having conceded primacy to the opinion of the Chief Justice of India. It B
was submitted that frequent utterances of the Union Ministers, both within
and outside the Parliament, have given the impression that the Central
Government had been following the policy of not making appointments to
the superior courts without the concurrence of the Chief Justice of India.
Counsel submitted that notwithstanding the majority decision on the ques-
tion on primacy in S.P. Gupta's case, in actual practice the Central Govern- C
ment always thought that the concurrence of the Chief Justice of India was
essential for making the appointment. Therefore, if the practice followed
throughout is borne in mind, there is no difficulty in holding that the
majority views in S.P. Gupta's case calls for reconsideration. In our view
this line of reasoning is wholly unsustainable. It must be remembered that D
in the process of selection of candidates for appointment to the superior
judiciary of the country every effort must be made both by the executive
wing as well as the judicial wing to arrive at a consensus i.e. a common
understanding and in the majority of cases there is no reason why it should
not be possible. The executive and the judiciary do not work at cross
purposes, in fact their objective is common and, therefore, it would really E
be surprising if th~re is lack of understanding in a wide range of cases
between them. The executive and the judiciary are not adversaries, they ar~
not supposed to work at cross purposes, then what is so surprising if in a
vast majority of cases barring seven they have reacheq an agreement on
the selection of the candidates for appointment! And what is the justifica- F
tion 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 G
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
H
916 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A fact the difference in seven cases, a negligible percentage no doubt, is
speaking evidence of the denial of the primacy concept. On the contrary it
shows that the executive acts with restraint and due deference to the views
of the Chief Justice of India. It would be unfair to read the attitude of
accommodation as one of total submission. In fact the seven instances of
departure from the views of the Chief Justice of India are cases of assertion
B which negate the inference of submission to the theory of primacy. And
mind you these all are post-S.P. Gupta instances which individually and
collectively provide evidence of assertion of executive's right to make an
appointment departing from the views expressed by the Chief Justice of
India and denial of the concept of primacy to be attached to the views of
C the latter. That being so it is difficult to appreciate the submission that the
executive had conceded primacy to the views of the Chief Justice of India
by making 540 :if the 547 appointments with the concurrence of the Chief
Justice of India. Even otherwise to rely on such a tenuous circumstance for
interpreting and understanding con;titutional questions great significance
D would seem to be a desperate attempt like clutching at a straw.

From the relevant provisions of the Constitution concerning the
judiciary which we have referred to and reproduced hereinbefore, it is
evident that the Constitution has used different expressions to meet with
different situations. The word 'consultation' is used in Articles 124(2),
E 217(1) and (3) and 233(1), the expression 'previous consent' is used in
Articles 127, 128 and 224-A, the word 'recommended' is used in Article
233(2), and the word 'approval' is used in Article 145 and proviso to 229(2)
of the Constitution. Reference to theses provisions is illustrative and not
exhaustive. It would, therefore, seem from the above that in the matter of
F appointment to the superior judiciary, the President can exercised his
power of appointment only after he has completed the process of consult-
ing certain constitutional functionaries, in the process of appointment of
ad hoc judges or retired judges to sit on the Bench, the power can be
exercised with the 'previous consent' of the President, in the case of making
of rules the 'approval' of the President/Governor is necessary and in the
G case of appointment to the· post of district judge recommendation of the
High 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
H 124(2) and 217(1) do not convey that the process of consultation means
ADVOCATES ASSN. v. U.O.L [AHMADI, J.] 917

concurrence with the views of the Chief Justice of India. However, counsel A
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 dis-
charge of the fundamental duty of abiding by the Constitution and respect
for its ideals and institutions (Article 51A(a)). According to them consult- B
ation, in the context of safeguarding judicial independence, with the head
of the Indian judiciary cannot merely seeing his views but must be under-
stood 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
m'.lst be in accordance with the opinion of the Chief Justice of India so
that the President may act on that advice as required by Article 74(1) of C
the Constitution. The view of the Chief Justice of India of India cannot be
wished away at the sweet will of the executive. It is, therefore, necessary
that the expression should not be given a narrow or literal meaning but
must in the context be understood to mean 'consent' or 'concurrence'.
Counsel emphasised that both Articles 124(2) and 217(1) contemplate D
plurality of consultation and this can be achieved by the Chief Justice of
India consulting two or more of his senior colleagues before expressing his
view which view would reflect the collective view of the judiciary. The
choice of the candidate for appointment would thus be based on the
collective wisdom of the Chief Justice of India and his colleagues and the
opinion expressed would be participatory in character and would in the E
final analysis subserve the object of the Independence of the judiciary and
selecting a person of the right stamp. Thus the opinion of the judiciary
would be symbolised in the opinion of the Chief Justice of India and it is,
therefore, essential that such a view should have primacy. Lastly it was said
that in any event the executive cannot be allowed to appoint a person F
whose selection is considered 'unsuitable' by the Chief Justice of India.
Counsel, therefore, submitted that between the two views canvassed before
this Court, the view which safeguards judidal independence and enables
choice of persons of the right stamp for the superior judiciary should
commend itself to the Court.
G
We have pointed out earlier that in the United Kingdom and other
common law jurisdictions, say Australia, Canada and the New Zealand as
well as the United States, the appointments to the superior judiciary are
exclusively by the executive with varying degree of control. In the United
Kingdom the appointments are made on the recommendations of the Lord H
918 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Chancellor or the Prime Minister depending on the level at which the
appointment is made. In Australia, the appointments are made by the
executive in the name of the Governor-General or Governor, in council
depending on whether the appointments are to the High Courts or other
federal courts or at the State-levels. In Canada the appointments are
B essentially by the executive whereas in New Zealand the judiciary plays an
active role but the appointment is made on the recommendation of the
Cabinet by the Governor-General. In the United States the appointment
to the Sup1eme 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 inde-
C pendence, the initial appointment at the entry stage is by the executive.

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
D 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.
E Since our Constitution makers were alive to the need to insulate the
judiciary from external pressures they introduced the concept of consult-
ation with the Judiciary Wing to limit and check the absolute discretion of
the executive in the matter of appointments to the superior judiciary. They
achieved this by introducing the concept of compulsory consultation with
F the judiciary before the appointments are made to the superior judiciary.
That is why Articles 124(2) and 217(1) provide that the appointments
under the said provisions shall be made 'after consultation' with the Chief
Justice of India and others. But it is difficult to say that the Constitution-
makers intended to denude the executive of all its power of appointment
by providing for consultation with the Chief Justice of India and other. We
G do not think, as we will presently show, that such a view is permissible on
the plain language of the Constitution even if the word 'consultation' is
understood in the backdrop of the need to strengthen the concept of
judicial independence.

H Before we proceed to deal with the relevant Articles we may state
ADVOCATES ASSN. v. U.0.1. [AHMADI,J.] 919

that of the two questions formulated in Subhash Shanna's case extracted A
earlier, it i;nay be mentioned that the concept of primacy referred to therein
his three elements, namely (i) primacy of the Chief Justice of India as 'pater
familias' of the Indian Judiciary (ii) primacy to be accorded to his views
amongst the consultees referred to in Articles 124(2) and 217(1) and (iii)
primacy in the sense of Chief Justice of India's view being binding on the B
President i.e. the executive. We may at the outset deal with the first aspect
of primacy.

Article 124(1) speaks of the Constitution of the Supreme Court of
India consisting of the Chief Justice of India and such number of judges
as may be prescribed from to time. The position of the Chief Justice of C
India under the Constitution is unique; on the judicial side he is primus
inter pares, on the administrative side the responsibility of managing the
business of the Court is exclusively his, it is privilege to constitute benches
and allocate judicial work to them. He also decides on who will work as
vacation judges. Apart from the fact that the draws a salary slightly higher D
than his colleagues, he is empowered by Articles 127 and 128 to appoint
adhoc judges or retired judges with the previous consent of the president
to discharge judicial functions whereas Article 130 empowers him with the
approval of the President to hold sittings of the Supreme Court at any place
outside Delhi. He is e~powered by Article 146(1) to make appointments
of officers and servants of the Supreme Court. He also chairs the meetings E
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.) F
at page 16.

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 G
appointments to be made to the superior judiciary is a non-judicial func-
tion, 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 217(1) of the Constitution. This is matter which H
920 SUPREME COURT REll()RTS [1993) SUPP. 2 S.C.R.

A touches the other two aspects of primacy on which we will elaborate at
once.

The scheme of 'consultation' under the Constitution varies. Under
Article 233, consultation with the High Court, i.e., the entire body of Judges
of the High Court. Then under Article 217(1) consultation is with three
B constitutional functionaries, namely, the Chief Justice of India, the Gover-
nor and the Chief Justice of the Concerned High Court. Under Article
124(2), the Judges of the Supreme Court and the High Court besides the
Chief Justice of India fall within the zone of consultation. Then there are
provisions which contemplate consultation with the Chief Justice of India [
C alone, e.g. Articles 217(3), 222(1) etc. Provisions are also found where the
Chief Justice of India can act with the 'previous consent' of the President,
Articles 127-128 - and Article 224-A for the High Courts. The word
'consult' as understood in ordinary parlance means to ask or seek advice
or the views of a person on any given subject i.e. to take counsel from
D another, but it does not convey that the consultant is bound by the advice.
In certain situations an expert in the field may be consulted but it is only
to help the consultant to take a final decision. By consulting even an e'qlert
the consultant does not mortgage his decision, the advice given is only
in-put among the various factors which enter decision making. He may
consult one or more experts and he may accept the advise he considers
E most acceptable or rational but he is always free to reach his own con-
clusion. It is ultimately his responsibility to reach a sound decision and he
is accountable for the same. Consultation would require at least two
persons, they consult each there by correspondence or by sitting across the
table. A may consult B on a given subject, obtain the opinion of B and act
F on it or he may, if not satisfied, discuss then issue with him or convey his
doubts in writing, seek his clarification and if satisfied .accept the advise or
depart therefrom. In Fletcher v. Minister of Town Planning, [1947] 2 All
England Reporter 496, the Minister's order designating an area of land as
the site for the proposed new township was questioned on the ground that
the requirements of the law were infringed inasmuch as there was no
G 'consultation' within the meaning 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
H by formulating words of definition. Nor would it be appropriate to
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 921

seek to lay down the manner in which consultation must take place. A
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
B
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.
P1,shpam v. The State of Madras, AIR (1953) Madras 392 at 393. The C
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 having regard to the substance q_f the events. The word D
'consult' implies a conference of two or more persons or an impact
of two or more minds in respect of a topic in order to enable them
to evolve a correct, or at least, a satisfactory solution. Such a
consultation may take place at a conference table or through
correspondence. The form is not material but the substance is
important. It is necessary that the consultation shall be directed to E
the essential points and to the core of the subject involved in the
discussi.ons. The consultation must enable the consultor to consider
the pros and cons of the question before coming to a decision. A
person consults another to be elucidated on the subject matter of
the consultation. A consultation may be between an uninformed F
person and an expert or between two experts. A patient consults
a doctor; a client consults his lawyer; two lawyers or two doctors
may hold consultation between themselves. In either case the final
decision is with the consultor, but he will not generally ignore the
advice except for good reasons. So too in the case of a public
authority. Many instances may be found in statutes when an G
authority entrusted with a duty is directed to perform the same in
consultation with another authority which is qualified to give advice
in respect of that duty. It is true that the final order is made and
the ultimate responsibility rests with the former authority. But it
will not and cannot be a performance of duty if no consultation is H
922 SUPREME COURT REPORTS (1993) SUPP. 25.C.R.

A made and even if made, is only is formal compliance with the
provisions. In either case the order is not made in compliance with
the provisions of the Act."

The view expressed in Fletcher's case on the content of consultation was
affirmed in Rollo and Another v. Minister of Town & Country Planning,
B [1948) All England Reporter 13. In Port Louis Corporation v. Attorney
General, Mauritius, (1965) Appeal Cases 1111 the Judicial Committee of
the Privy Council observed; "consultation" connotes an exchange of ideas,
information and views, in which each side has a full opportunity of con-
tributing to such an exchange; it is not a one way process but a two way
C process. According to their Lordships it is essential for the executive to
advise with an open mind, that is, open to persuasion and open to ap-
preciate the advice tendered and if one may add eschew his own point of
view if satisfied about its weakness. The requirement of consultation is
never to be taken perfunctorily of as a mere formality. Again in R. v.
D 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
E 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 ad\jce. In my view it must go without
saying that to achieve consultation sufficient information must be
F 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
G might not be fully informed or advised and as to which the party
consulted might have relevant information or advice to offer." ''

It is well settled that a Constitution is an ever evolving organic
document which cannot be read in a narrow, pedantic or syllogistic way
H but must receive a broad interpretation. Constitution being a growing
,
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.) 923

clr;c-.i:nent its provisions can never remain static and the Court's endeavour A
should be. to interpret its phraseology broadly so that it may be able to
meet the requirements of an ever-changing society. But while it may be
• permissible to give an enlarged or expanded meaning to the phraseology
used by the Constitution makers, while it may be permissible to mould the
provisions to serve the needs of the society, while it may even be permis- B
sible in certain extreme situations to stretch the meaning and, if necessary,
bend it forward, it would certainly be impermissible to break it or in the
guise of interpretation to replace the provisions or re-write them. Giving
the widest connotation to the word 'consultation', stretching it almost to
the breaking point, it is not possible, in the constitutional context and
having regard to the constitutional scheme and in the light of what we have c
discussed hereinbefore, to attribute to it the meaning of 'concurrence' or
'consent'. If any indication is needed reference may be made to Article
320(3) read with Article 323; by the former provision is made for consulting
the Public Service Commission on the matters enumerated at items (a) to
(e) thereof and the latter provision envisages what procedure will be D
followed in the event the advice of the Commission is not accepted. Thus
the Constitution itself recognises the possibility of the consultant not
following the advice of the consultee i.e., the Commission. In that event all
that Article 323 requires' is that the annual report of the Commission shall
be placed before the Parliament together with a memorandum explaining E
why the advice of he Commission was not accepted. In fact in the case of
State of U.P. v. Mandodhan Lal Srivastava, [1958] SCR 533, a Constitution
Bench of this Court held that 'the req.iirement of the consultation with the
Commission does not extend to making the advice of the Commission on
those matters, binding on the Government'. It was, therefore, held that F
while consultation with the Commission is with a view to getting proper
assistance and 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 G
constitutional scheme. It was said that the object of providing for consult-
ation 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
H
924 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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
B mind the fact that Mr. B. Pocker Sahib had moved amendments to intro-
duce the requirement of the 'concurrence' of Chief Justice of India in the
matter of appointments to the Supreme Court and the High Courts which
c
were rejected by the Constituent Assembly. This factual history also lends
support to the view that the Constitution-makers had debated and con-
C sciously negatived the amendments.

It may also be mentioned that while deciding the question regarding
the scope and ambit of Article 222(1) of the Constitution in Union of India
v. Sankal Chand Himatlal Sheth & Anr., [1978] 1 SCR 423 the learned
Judges comprising the Constitution Bench were divided in their view on
D the question whether a High Court Judge could or could not be transferred
without his consent, but there was no difference of opinion in regard to
the nature of consultation with the Chief Justice of India. All the learned
Judges were in agreement that the consultation must be substantial and
effective based on full and proper disclosure of material but none of the
E learned Judges went so far as to say that the concurrence of the Chief
Justice of India was a must for effecting the transfer. All that their
Lordships said was that the transfer must be in public interest. While
Bhagwati & Untwalia, JJ. were of the view that the consent of the Judge
proposed to be transferred was essential for maintaining judicial inde-
pendence, the other three learned Judges were of the view that considera-
F
tions of public interest would be a sufficient safeguard against any abuse
of power. It would thus be seen that learned Judges who were quite
conscious of preserving the independence of the judiciary were not
prepared to go to the length of construing 'consultation' to mean
'concurrence' of the Chief Justice of India. In fact Justice Krishna Iyer
G sounded a note of caution when he said at page 501 :

"His consent in such situation can never be a guide to control the
clear intendment of the article reflected in its unambiguous terms.
To re-write the Constitution by the art of construction, passionately
H impelled by contemporary events, is unwittingly to distort the
ADVOCATES ASSN. v. V.O.I. [AHMADI,J.] 925

judicature scheme our founders planned with thoughtful care and A
to wish into words that plain English and plainer context cannot
sustain. Ample as judicial powers are, they must be exercised with
the sobering thoughtlus die ere et non jus dare (to declare the law,
not to make it).

B
In In Re the Special Courts Bill, 1978 (1979) 2 SCR 476 a Seven-judge
Constitution Bench of this Court pointed out that the process of consult-
ation 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 C
the concept of concurrence of the Chief Justice of India. Even in the
subsequent decision in S.P. Sarnpath Kumar etc. v. Union of India & Ors.,
(1987] 1 SCR 435 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 restrajnt in interfering with D
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 E
part of the executive in the appointment of Judges of the Supreme Court
and the High Courts and transfer of Judges of the High Courts and also
to make such appointments without delay. The Bill envisaged the constitu-
tion of the National Judicial Commission for recommending appointments
to the Supreme Court and the High Courts. The constitution of Commis- F
sion for the former was to comprise of the Chief Justice of India as its
Chairman plus two of his seniormost colleagues. For recommending ap-
pointments to the High Court the Commission was to consist of Chief
Justice of India as its Chairman, the State Chief Justice Minister, one other
seniormost Supreme Court Judge, the Chief Justice of the High Court and
one other seniormost Judges of the High Court. It will thus be seen that G
even under this Bill last word in the matter of choice for appointment to
the Supreme Court or the High Court was not left with the Chief Justice
of India. On the contrary the proposed proviso to Article 124(2) of the
Constitution contemplated non-acceptance of the recommendation of the
National Judicial Commission. Even under this Bill, therefore, the last H
926 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A word in the matter of appointment to the High Court was not left with the
Judicial Wing. Even the appointment of a Judge of the Supreme Court
chosen by the Chief Justice of India and his two seniormost colleagues may
not be accepted under the proposed proviso to Article 124(2) and hence
to that extent the executive retained control. Therefore, even these sub-
B sequent developments do not support the proposition that the Chief Justice
of India should have primacy in the matter of appointments to the superior
judiciary of the country.

Judges being the central figures where administration of justice is
concerned there can be no doubt that great care must be taken in the
C choice of personnel for judgeship. The method of judicial appointments
would have a great deal of bearing on the quality of the judiciary and its
composition. The method of appointment must ensure that the most
qualified candidate secures appointment. We have indicated earlier the
models of judicial selection employed by different countries. In all these
D models the executive has a pre-eminent role to play. We have adopted a
mixed method whereunder both the executive and the judiciary play their
respective roles. Our Constitution being of checks and balances, the ab-
solute power of the executive in the choice of members of the superior
judiciary is controlled by the need for prior consultation with the judicial
E 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
F 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
G 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 which may confront us. In the first place the plain
language of Articles 124(2) and 217(1) does not support the contention.
H There is no warrant in the constitutional scheme to hold that any hierarchy
ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 927

was intended amongst the consultees. For example, as pointed out earlier, A
in the operation of the process under Article 124(2), four situations arise.
-~
Take situation (ii) where the President has consulted the Chief Justice of
India and two or more judges of the Supreme Court and their views do not
tally. Can it be said that the collective weight of the opinion of other judges
would be set at naught merely because the Chief Justice of India does not B
agree? The Chief Justice of India is undoubtedly 'pater familias' of the
Indian judiciary but the Constitution nowhere confers on him the power to
eclipse the views of his co-equals. If such a views is taken the provision of
consultation with others mentioned in Article 124(2) will be rendered
nugatory since under the proviso the Chief Justice of India has always to C
be consulted. Take again situation (iii) where the President consults three
Chief Justices of the States and their collective opinion differs from that of
the Chief Justice of India. If the opinion of the three Chief Justice is to be
shelved why consult them at all? In relation to the High Courts also, Article
217(1) provides for consultation with the three functionaries. As pointed
out earlier the Chief Justice of the State, being in intimate touch with the D
members of the profession, would be better suited to opine on the quality
of the candidate chosen by him. But a distinction exists between the legal
acumen of a lawyer and qualities which go to make a good judge. In
relation to the first the Chief Justice of the State would be better suited to
opine but in relation to the second the executive will certainly have a role E
to play. It is the. blending of these two roles which brings out the full
personality of the candidate. It is true that in both cases the Chief Justice
of India has an opportunity to filter the material before expressing an
opinion and, therefore, his view is indeed entitled to greater weight but that
is altogether different from saying that his view will render the views of the F
other consultees non-est. There being no hierarchy contemplated by Ar-
ticle 217(1) each consultee has a definite contribution to make which need
not be ignored. The opinions of the consultees both under Article 124(2)
and 217(1) are intended to act as checks on the exercise of discretion by
the executive which will be accountable to the people. It would be in G
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 ·
H
928 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A 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
B 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 Article 74(1) of the Constitution. Such a view
may tend to make the Chief Justice of India insensitive to the views of the
C other consultees and may embroil him in avoidable litigation. If the Presi-
dent has to act on the aid and advice of the Council of Ministers it is
difficult to hold that he is bound by the opinion of the Chief Justice of
India unless we hold that the Council of Ministers including the Prime
Minister would be bound by the opinion of the Chief Justice of India, a
construction which to our mind is too artificial and strained <o command
D acceptance. We think, such an interpretation of the constitutional
provisions would tantamount to re-writing the Constitution under the guise
of interpretation which distort the judicature fabric found woven into the
Constitution. Therefore, however convincing it may sound to the ideal of
judicial independence that the views of the Chief Justice of India must have
E primacy as his views expressed after consulting his two seniormost col-
leagues would be symbolic of the views of the entire judiciary, the submis-
sion cannot be accepted unless the Constitution is amended. As the
constitutional provisions presently stand, the submission based on this line
of reasoning is unacceptable. For the foregoing reasons, but subject to the
F qualifications in the concluding paragraph, we do not think the majority
view in S.P. Gupta's case articulated in the judgments of Bhagwati, Fazal
Ali, Desai and Venkataramiah, JJ. requires reconsideration on this aspect
of the matter.

In the view we take on an interpretation of Articles 124(2) and
G 217(1), the submission of Mr. Shanti Bhushan and Mr. Jethmalini loses
significance. Even otherwise, we do not see any merit in the submission.
The governmental powers are ordinarily divided into (i) executive (ii)
legislative and (iii) judicial. The power to appoint judges to the superior
courts is an executive function. By virtue of Article 53 the executive power
H is undoubtedly vested in the President which he must exercise 'in accord-

,,
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 929

ance with this Constitution. Similarly under Article 154 the executive power A
of the State vests in the Governor which his must exercise in accordance
with the Constitution. Articles 73/162 provide that subject to the provisions
of the Constitution, the executive power of the Union/State shall extend to
.~
matters with respect to which Parliament/State Legislature has power to
make laws, Counsel submitted that since neither List I nor List III in the B
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 i..~ not one which would attract Article 74(1) of the Constitu-
tion. But here counsel overlooks Article 248 and the residuary entry 97 in
List I by which exclusive power is conferred on Parliament to make laws
even in respect of subjects not specifically covered. Under the Constitu- C
tional 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 D
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 Gover-
nor is required by or under the Constitution to exercise his functions in his
discretion. The precise language of Article 163(1) uses the words "except E
in so far as he is 'by or under' this Constitution required to exercise his
functions or any of them in his discretion". It may be noticed that the words
carving out the exception are not to be found in Article 74(1). That is way
in Shamsher Singh v. State of Punjab, [1975] 1 SCR 814 it was held at page
835 that only those executive functions which by or under the Constitution
are required to be performed by the Governor in his discretion can be
F
performed without the aid and advice of the Council of Ministers and none
else. This Court enumerated instances of constitutional requirements
where the Governor must act in his discretion. Since Article 217(1) does
not say that the said function the Governor must perform in his discretion
it is obvious that in the matter or appointments to the superior judiciary G
the Governor must act according to the aid and advice received from his
Council of Ministers. Similarly by virtue of Article 74(1) the President is
obliged to act on the advise of the Council of Ministers. It must also be
realised that under Articles 75(3) and 164(2) the Council of Ministers are
collectively responsible to the House of the People in the case of the Union H
930 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A and the Legislative Assembly in the case of the State. If the President or
Governor refuse to act on the advice of their Council of Ministers, it would
result in a constitutional crisis. We have, therefore, no doubt in our minds
that in the form of parliamentary democracy which we have adopted, the
President and the Governors are symbolic heads and so long as their
Council of Ministers exist they must abide by their advice except where the
B
Governor is required by or under the Constitution to act in his discretion.
We, therefore, reject this contention.

Before we proceed to the next topic two offshoots which surfaced
C during the hearing may be meptioned. The first concerned the transfer of
judges and the second related to the mode of selection of personnel for
appointment. By the referring judgment in Subhash Shanna's case these
aspects have not been referred for consideration by the largest bench and,
therefore, the contesting parties have not entered their pleadings on the
D points and perhaps even the learned counsel were not fully prepared to
deal with them. The various aspects of the transfer policy have been
disc.ussed 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.
E 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
F 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
G a second transfer is not permissible without his consent. It goes without
saying that unless there are very pressing reasons, the Chief Justice of India
will not consent to a second transfer. And since this is a post- appointment
-
stage, the view of the Chief Justice of India will have a greater say in the
matter because exercise of the power to transfer a member of the judiciary
H by the executive is likely to be misunderstood as executive's effort to
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 931

undeimine the independence of the judiciary. The weight to be attached A
of the views of the Chief Justice of India in this field would be much more
than what his opinion would carry at the pre-entry stage. Since the transfer
can be effected in public interest only that requirement or limitation would
safeguard judicial independence. A transfer effected in public interest
cannot be punitive but care must at all times be taken to ensure that in the ls
guise of public interest a High Court judges is not being actually penalised.
When a puisne judge is transferred to take over as a Chief Ju~tice else-
where such a transfer would never be construed as penal because of the
elevation involved in it but where the transfer is a second one qua the
individual it is likely to be so interpreted and hence a far greater C
responsibility is cast on the Chief Justice of India during the. consultation
process to take every precaution to see that it is not so. Once this care is
taken there is nothing in Article 222(1) to limit the power to only one
transfer without the concerned judge's consent and thereafter only with his
consent.
D
On the second point, namely, the mode of selection for appointment
to the Supreme Court, there was hardly any discussion at the Bar and
except for general platitudinous exchanges there was hardly any concrete
suggestion emerging frbm the discussion. In the points formulated by
learned counsel in the course of their address no one had made any E
mention of guidelines to be followed by the Chief Justice of India in the
matter of choice of candidates for appointment to the Supreme Court. So
also none of the counsel formulated any specific points for laying down any
guidelines to be followed by the Chief Justice of High Courts for appoint-
ments to be made to the High Court. In these circumstances, we think it F
would be hazardous to lay down any guideline in this behalf. This bench
was constituted to consider the two points specifically mentioned in Sub-
hash Shanna's case to which the pleadings are restricted and no question
was specifically formulated even at the hearing of the reference on the
procedure to be followed in the matter of appointments to the superior G
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
recoguised 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 H
932 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A 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,
B 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 remembered that entry into the superior judiciary is by invitation
. C and judges constituting the superior judiciary are not stricto-sensu civil
servants. The functions to be performed by those constituting the superior
judiciary are totally different from those performed by the district judges.
Similarly the nature of duties and functions undertaken by judges of the
apex court are different from those at the High Court level. Therefore, to
D say that in the matter of appointment to the apex court inter-se seniority
in the concerned High Court and at the combined seniority at the all-India
level should be given due weight unless there be strong cogent reasons to
justify a departure would, to say the least, create a host of problems. Take
for example, the first four judges in the all- India seniority are from a single
E High Court. If you appoint all of them the 'representative' character of the
Court will be disturbed. Take for example the senior most judge of High
Court X is at serial No. 50 in the all-India seniority and there is no judge
in the apex court from that High Court which is one of the major High
Courts. The Chief Justice of India will fmd it difficult to nominate him for
appointment and if he does there is every possibility of his seniors ques-
F
tioning the decision of the Chief Justice of India in Court. In order to
maintain the representative character of the High Cou!ts and the Supreme
Court so that people of all hues have confidence in the institution, the rule
of seniority, which may be valid for Civil Services (even in Civil Services
.the higher posts arc filled on merit), can have no application to constitu-
G tional functionaries. So also the 'legitimate expectation' doctrine can have
no relevance in determining the suitability of the appointee. The seniority
principle and the legitimate expectation doctrine are incapable of realistic
application as they would destroy the representative character of the
superior judiciary, which is absolutely essential for every segment of society
H to have confidence in the system. The seniority principle and the legitimate
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.) 933

expectation doctrine would only push merit to the second place. Appoint- A
ments to the superior judiciary should be solely on merit and other
suitability factors and not on' the basis of inter se seniority in the High
Court or placement in the combined all-India seniority list. There can be
no room for the legitimate expectation doctrine in cases where appoint-
ments are on merit and by invitation. We must hasten to add that where B
both the candidates under consideration are of equal merit, inter se
seniority may have a role to play, subject to other requirements for main-
taining 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. C
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 D
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. made in the judgment of our learned colleagues. E

That takes us to the second question whether the issue regarding the
fixation of judge-strength under Article 216 of the Constitution is justici-
able. There is no doubt that every High Court with the exception of one
or two has swollen dockets. The backlog is substantial in these High Courts. F
Justice, social, economic and political is our constitutional goal. When
members of a civilised society agree to have their disputes settled through
an independent and impartial mechanism offered by the State, with a set
of laws and rules governing the same, we think, there is an implied promise
that the mechanism so offered will deliver the goods within a reasonable
time. Human race has always remained conscious of the sense of justice G
and, therefore, justice has always been the first virtue of any civilised
society. There can, therefore, be no doubt that all those concerned with
the judicial system in this country must be alive to the fact that because of
diverse reasons, but entirely of the making of the judiciary, the judicial
system has not been able to keep its implied promise to dispense jlJ,$tice H
within a reasonable time. This is essentially on account of the fact that not
934 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A sufficient attention has been paid to modernise our judicial system, co-
operation from those connected with the system has been grudging and the
members of the profession too have contributed by frequent adjournments 1
and strikes. The executive too has not been able to contain its litigation
docket and a tendency is clearly discernible that even high ranking officers
B are not prepared to take responsibility and find it easy to rest the respon-
sibility on the judiciary. Politico-legal issues are also diverted to courts
which consume a lot of judicial time. There has been an environmental
degradation which has also affected the work culture of the judiciary. The
service conditions of judges are no more attractive, they take no notice of
the earnings of an average lawyer, with the result that recruitment from the
C Bar of persons of the right stamp is difficult which slows dmm the disposal
of cases and increases appellate and revisional work. It is, therefore,
essential that we realise that judge-strength is only a small contributing
factor. Here also we cannot lose sight of the fact that there is always an
optimum strength beyond which it would be a mere surplusage because it
D 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 scientifi-
cally worked out, certainly ease the same. What is really necessary is to
E 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
F 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 inc.Tease
in the judge-strength by itself will not make a very substantial impact unlf'ss
the entire system is modernised with the help of computers etc., and a
virtual crusade is undertaken with the help of the members of the profes-
.. -
G sion, the executive and the judiciary to combat law' delays.

As stated earlier, increase in the judge -strength may somewhat ease
the problem of delay in the disposal of cases. Article 216 provides that
every High Court shall consist of the Chief Justice of such other judges as
H the President may from time to time deem it necessary to appoint. The
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 935

Article clearly casts a duty on the President, i.e. the executive, to decide A
· from time to rime on the number of judges necessary to be appointed in
every High Court. The words 'deem it necessary to appoint' when read with
'from time to time' leave nothing to doubt that the Article envisages
periodical assessment of the judge-strength by the executive in respect of
each High Court. This is undoubtedly a constitutional obligation which B
must be performed in time arid without delay. It may be noticed that this
provision does not provide for consultation with the judicial wing but
normally the Chief Justice of the High Court initiates a move for increase
in the judge-strength because he is better suited to know his requirements.
Since the fixation of judge-strength depends on a variety of factors no
uniform rule of general application can be evolved as the situation in each C
High Court cannot be identical. Local factors differ and they cannot be
wished away. It cannot be so simple as dividing the pending backlog l:y the
disposal norm fixed for each judge to arrive at the number of judges
required. Take a case where the number of judges is adequate but cases
have piled up on account of frequent stoppages - we are not on the D
justification for the stoppage of work but on the factum. Can a demand for
upward revision of judge-strength be justified? Even if additional judges
are appointed but the scenario of stoppage of work continues, will the
increase in the judge-strength make any significant impact on the dis-
posals? Unfortunately, there are very few High Courts and courts subor-
dinate thereto which do not face this problem. Similarly take the situation E
where because of t]le high disparity ratio between average earnings at the
Bar and the service conditions offered to judges, candidates of the right
stamp are not available, would it make any significant impact on the
disposals if less than average ability candidates are appointed to fill the
increase posts. The entire problem is a complex one and eludes a workable p
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 stand-
ards, to issue any directive to the executive and, therefore, the matter must G
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
H
936 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A obligation is cast on the President to provide adequate strength of per-
manent 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 perma.'lent strength of the
High Court. He further stated that appointing judges is purely an executive
B function entrusted by the Constitution to the executive and it would not be
'proper' for the Supreme Court to usurp that function to itself or issue a
directive in that behalf 'unless forced by glaring circumstances', Desai, J.
endorsed the view of Bhagwati, J. and observed : 'Failure to perform duty
of appointing adequate number of judges in the High Courts cast on the
President by Article 216 would make him answerable to the Parliament and
C not to the Court'. Pathak, J. while reiterating that Article 216 mandates a
periodic review of the judge-strength in every High Court held that it is a
purely executive function and 'the court cannot by judicial verdict decide
how many permanent judges are required for the High Court.
Venkataramiah, J. struck a different note when he observed:
D "the power conferred on the President by Article 216 of the
Constitution to appoint sufficient number of Judges is a power
coupled with a duty and is not merely a political function. In ·the
instant case ordinarily the court would have been reluctant to issue
any mandamus to the Government to comply with the duty of
E determination of the strength of Judges of High Courts. But having
regard to the undisputed total in adequacy of the strength of
Judges in many High Courts, it appears to be inevitable that the
Union Government should be directed to determine within a
reasonable time the strength of permanent Judges required for the
disposal of cases instituted in them and to take steps to fill up the
F
vacancies after making such determination."

He then went on to give a directive to the Union Government to review
the strength of permanent judges in very High Court, to fix the number of
J
..,.
permanent judges that should be appointed on the basis of work-load and
G to fill up the vacancies. He directed a writ in the above terms to issue.

From the above it is clear that three of the learned judges, namely,
Bhagwati, Desai and Pathak, JJ. were clearly of the opinion that the
question of fixation of judge-strength under Article 216 was essentially an
H executive function and not justiciable in court. They held that judiciary
ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 937

cannot issue a writ or a directive if the executive fails to perform its duty A
under Article 216 and the remedy lies in the legislature. Tulzapurkar, J.,
however, felt it would not be 'proper' for the court to give diredions 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 B
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 C
and jurisdiction to issue writ or directive while the fourth leaned judge-says
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 peri-
odically on the basis of workload. But as pointed out earlier fixation of D
judge-strength solely on the basis of workload may not be correct because
accumulation of workload may be for diverse reasons.

The question of judicial manpower planning engaged the attention
of the law Commission of India. Lamenting on the neglect of this important
aspect notwithstanding laws' delay, the Commission pointed out the low E
judge-population ratio, 10.5 judges per million people in India, as com-
pared to other countries where. it varied from 41.6 judges per million
population in Australia to 107 judges per million population in the USA
and realised it was difficult to envisage a five-fold increase in the judge-
strength within a short span. But the Commission conceded : ·
F
"The Commission has a feeling that absence of hard technical
information and analysis has reinforced, if not generated, a tacit
indifference to the situation by all concerned including the judicial
administration. The Commission itself is in. no position, given the
fact of its present structure, to provide this kind of technical G
analysis only on which sound programme of change can be en-
visaged, of course, the Commission has done the next best thing
and elicited extensive opinion of those knowledgeable in the field
and general public. But we must admit that, all said and done, this
lv a very poor substitute for sound scientific analysis." H
938 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A (emphasis supplied)

The was the first interim report (!20th Report) of the Commission. The
Commission recommended increasing the ratio of judges per million of
population from 10.5 to 50 i.e. a fivefold increase. This was followed by a
B comprehensive report (!21st Report) on "A New Forum Judicial Appoint-
ments". The 127th Report dealt with the problems of improvement in the
infrastructure for the judiciary. It will be seen from the observation of the
Commission extracted from the 120th Report, that even the Law Commis-
sion which had the time and opportunity to undertake a technical analysis
on which a sound and durable formula could be evolved expressed its
C inability to do so and fell back on what it considered 'the next best thing'
and 'a very poor substitute' for sound scientific analysis. The purpose of
mentioning this is to point out that a scientific method on the fixation of
judge-strength is no easy task. If it was difficult for a body like the Law
Commission which had expert advice and time available to itself it would
D be virtually impossible for the courts to undertake such an exercise. ,·

In the above background the question must still be 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
E 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
p 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
G 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. But
where the allegation is that the public authority is guilty of non-perfor-
mance of its public duty and it is shown that it has failed to perform its
constitutional or statutory duty, can it be said that there is no remedy
H available through court and a mandamus cannot issue? In order, however,
ADVOCATES ASSN. v. U.0.1. (AHMADI, J.] 939

for a mandamus to issue to compel performance of a duty, it must clearly A
appear from the language of the statute that a duty is imposed, the
. performance or non-performance of which is not a matter of mere discre-
tion. But even in cases where the duty is discretionary, as distinct from a
statutory obligation, a limited mandamus could issue directing the public
authority to exercise its discretion within a reasonable time on sound legal B
principles and not merely on whim. Therefore, if the executive which is
charged with a duty under the Constitution to undertake a periodical
review of the Judges-strength fails in the performance of that duty, an order
of mandamus can lie to compel performance within a reasonable time.
Therefore, in principle, it is not possible to say that the issue is wholly
outside the Court's purview and the remedy is merely to knock the doors C
of the legislature. Albeit, a proper foundation must be laid because the
Court will be extremely slow in exercising its extraordinary powers to issue
a writ of mandamus compelling performance of a certain duty unless it is
fully satisfied that the executive has totally omitted to pay attention to its
constitutional obligation and needs to be awakened from its slumber. But D
in the guise of exercising the power of judicial review care must be taken
to ensure, as pointed out by Tulzapurkar, J., that the judiciary does not
usurp this executive function to itself. But as Tulzapurkar, J. warns no
directive would be possible unless forced by glaring and compelling cir-
cumstances which would be possible only if full, complete and correct
assessment of the requisite strength of each High Court is available and E
the court feels that t~e executive has been oblivious to the said facts. In
the absence of judicially manageable standards this may not be possible, in
which case the exercise of power would be in vain and normally a court
does not act in vain. We are, therefore, of the opinion that if there is a
wilful and deliberate failure on the part of the executive to perform its duty p
under Article 216, a writ can issue to 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.

The need for periodical revision of the judge-strength is essentially G
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 H
940 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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 the 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
B not be difficult for the Minister of Law and Justice in the Central Govern-
ment to revise the guidelines, fix the maximum time each consultee must
take on the proposal having regard to the role he is expected to play and
ensure strict compliance at the executive level. This will help expedite the
movement of the proposal and if it its found to be unreasonably withheld,
C the functionary may be compelled through a writ to perform his public duty
within the time allowed by the court. We are sure that if the functionaries
involved in the decision-making process realise their duty and obligation
to society particularly to the consumers of justice, the need to move the
court will not arise. We, therefore, hold that the issue is justiciable only to
D the limited extent indicated above· and as manifested by the limited writ
issued by Venkatararniah, J. in S.P. Gupta's case and that too in the rarest
of rare cases where glaring and compelling circumstances force the court
to act.

We conclude:

(i) The concept of judicial independence is deeply ingrained in our
constitutional scheme and Article 50 illuminates it. The degree of
independence is near total after a person is appointed and in-
ducted in the judicial family.

F (ii) The method of selecting a judge for the Supreme- Court and
the High Court is outlined in Articles 124(2) and 217(1) of the
Constitution. While in the United States, the United Kingdom,
Australis and Canada appointments to the superior judiciary are
exclusively by the executive, our Constitution has charted a middle
course by providing for 'prior consultation' with the judiciary
G
before the President; i.e. the executive, makes the appointment to
the Supreme Court or the High Courts.

Therefore, however convincing it may sound to the ideal of
.judicial independence that the views of the Chief Justice of India
H must have primacy as his views expressed after consulting his two
ADVOCATES ASSN. v. U.O.J. [AHMADI, J.] 941

seniormost colleagues would be symbolic of the views of the entire A
judiciary, the submission cannot be accepted unless the Constitu-
tion is amended. As the constitutional provisions presently stand,
the submission based on this line of reasoning is unacceptable.

(iii) Under our constitutional scheme prior consultation with the
Chief Justice of India is a must under Articles 124(2), 217(1), B
217(3) and 222(1) but the weight to be attached to the views of
the Chief Justice of India would depend on whether it is at the
pre-appointment stage or the post-appointment stage and whether
he is one of the consultees or the sole consultee.
. c
(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 D
Justice of India would be binding on the President, i.e., the execu-
tive.

The position of the Chief Justice of India under the Constitu-
tion 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 E
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 F
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 col-
leagues but his view will not eclipse the views of his colleagues
forbidding the President, i.e. the executive, from relying of them.
.. _,,.
The weight to be attached to his views would be much greater as
compared to the weight to be accorded to the views of the other G
consultees under Article 217(1) since he has had the advantage of
filtering their views and ordinarily his views should prevail except
for strong and cogent reasons to the contrary but that does not
mean that the views of the other consultees would be rendered
irrelevant or non-est forbidding the President, i.e. executive, from H
942 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A noticing or relying on them. The views of the Chief Justice of India
would be entitled to even greater weight when he is the sole
consultee under the constitution, e.g. Article 222(1), more so when
(
it concer~s a member of the judicial family and ordinarily his view
should be accepted and acted upon by the President, i.e. the
executive, unless there are compelling reasons to act otherwise to
B be recorded in writing so that the apprehension of the executive
having acted in a manner tantamounting to interference with
judicial independence is dispelled. Thus graded weight has to be
attached to the views of the Chief Justice of India as indicated
hereinabove.
c
(v) There is nothing in the language of Article 222(1) to rule out
a second transfer of a once transferred judge without his consent
but ordinarily the same must be avoided unless there exist pressing
circumstances making it unavoidanble. Ordinarily a transfer ef-
fected in public interest may not be punitive but all the same the
D Chief Justice of India must take great care to ensure that in the
guise of public interest the judge is not being penalised.

(vi) The question of fixation of judge-strength under Article 216
is justiciable, in that, a limited mandamus can issue to the executive
to perform its constitutional duty within a reasonable time in the
E manner and to the extent indicated in the direction given by
Venkataramiah, J. S.P. Gupta's case. But this would be in the rarest
of rare cases where there exist glaring and compelling cir-
cumstance which would force the hands of the Court.

(vii) We respectfully do not agree with the observations made in
F the judgment of Brother Verma, J. in regard to the application of
the principle of seniority and legitimate expectation, etc. for
reasons stated hereinbefore.

Before we say adieu we owe debt of gratitude to the learned Attorney
G General who appeared 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
H disposed of accordingly.
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 943

KULDIP SINGH, J. The President of India is the Appointing A
Authority for the Judges of the High Courts and of the Supreme Court.
He is to make the appointments - unfier 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 accord- B
ance 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. The other question before us is whether the
judiciary can interfere and force appointments adequate in number to carry C
on the judicial work of the country.

These questions are not res-integra. A Seven Judge Bench of this
Court in S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982]
2 SCR 365 has held that the Central Government can override the opinion D
given by the constitutional functionaries and can arrive at its own decision
in regard to the appointment of a Judge in the High Court or the Supreme
Court. In other words the Executive has the primacy in the matter of
aopointment of Judges ,and it can ignore the opinion rendered by the Chief
Justice of India and other judicial functionaries in the process of consult-
ation. The second question was also answered in the negative. We are E
called upon to pronounce upon the correctness or otherwise of the law laid
down by this Court in S.P. Gupta's case on the above two question.

Emment lawyers assisted us at the hearing. Mr. F.S. Nariman, Mr.
Kapil Sibal, Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. P.P. Rao, Mr. p
R.K. Garg and Mr. S.P. Gupta canvassed before us - interpreting the
relevant constitutional provisions from different angles - that the judgment
of this Court in S.P. Gupta's case needs re-consideration. Mr. K. Parasaran
represented the view point of the Union of India. Mr. Milon Banerjee,
learned Attorney General rendered valuable assistance. Advocate-General
Karnataka, Advocate-General Madhya Pradesh and Advocate-General G
Sikkim were also heard by us. The argnments were advanced by the learned
counsel on both sides in a non-contentious atmosphere. We place on
record our appreciation for the learned counsel. But for. their assistance it'
would not have been possible for us appreciate the complicated and
delicate issue involved in this case. H
944 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A From the arguments of the learned counsel - oral and written - we
cull-out the following issues for adjudication :

1. Stare decises Is it a bar to re-consider S.P.
(
Gupta's case?
B 2. Interpretation of constitutional - What are the rules?
provisions
3. Independence of Judiciary Broader version of the
concept.
4. Constitutional conventions Scope and field of operation.
c Do we have an established
convention giving primacy to
the Judiciary in the matter of
appointment of Judges to the
Superior Courts?
D 5. "After 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?
E 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
F
seniority?
8. Other issues · a) Appointments to Supreme
Court;
b) Transfers (Article 222);
G
c) Fixation of Judges-strength.

Stare decisis

Mr. K. Parasaran, learned senior advocate, appearing for the union,
H of India has contended that the doctrine of stare decisis being the corner:
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 945

·stone of our legal system, we should not interfere with the ratio of this A
Court in S.P. Gupta's case which has stood the test of time.

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 B
called upon to reconsider a question already decided. The Court has in
appropriate cases over-ruled its earlier decisions. The process of trial and
error, lessons of experience and force of better reasoning make this Court
wiser in its judicial functioning. In cases involving vital constitutional issues
this Court must feel to bring its opinions into agreement with experience C
and with the facts newly ascertained. Stare decisis has less reievance in
constitutional cases where, save for constitutional amendments, this Court
is the only body able to make needed changes. Re-examination and recon-
sideration are among the normal processes of intelligent living. We have
not refrained from reconsideration of a prior construction of the Constitu-
tion that has proved "unsound in principle and unworkable in practice." D
Interpretation of constitutional provisions

The Framers of the Constitution planted in India a living tree capable
of growth and expansion within its natural limits. It lives and breathes and
E
is capable of growing to keep pace with the growth of the country and its
people. Constitutional law cannot be static if it is to meet the needs of men.
New situations continually arise. Changes in conditions may require a
new-look at the existing legal concepts. It is not enough merely to interpret
the constitutional text. It must be interpreted so as to advance the policy
and purpose underlying its provisions. A purposeful meaning, which may F
have become necessary by passage of time and process of experience, has
to be given. The Courts must face the facts and meet the needs and
aspirations of the times.

Interpretation of the Constitution is a continual-process. The institu- G
tions created thereunder, the concepts propounded by the framers and the
words, which are beads in the constitutional- rosary, may keep on changing
their hue in the process of trial and error, with the passage of time.

When the words in the Constitution - defining institutions and their
functioning - were drafted, the Framers could not have foreseen as to what H
946 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A would be the development in the coming future. In R.C. Poudyal v. Union
of India, (1993) 3 Scale 486 at 508, M.N. Venkatachaliah, J. (as the learned
Chief Justice then was) observed as under :

"In the interpretation of a constitutional document words are but
the framework of concepts and concepts may change more than
B words themselves. The significance of change of concept themsel-
ves is vital solved by a mere appeal to the meaning of the words
without an acceptance of the line of their growth"

The case before us must be considered in the light of our entire
C 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 con-
sider 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 cir-
cumstances and values, it has to be read in such a way that the circumstan-
ces and values of the present generation are given expression in its
D provisions. An eminent jurist observed that "Constitutional interpretation
is as much a process of creation as one of discovery".

It would be useful to quote hereunder a paragraph from the judg-
ment of Supreme Court of Canada in Hunter v. Southam INC, [1984) 2 SCR
E 145 at 156:

"It is clear that the meaning of 'unreasonable' cannot be deter-
mined 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.
F A Statute defines present rights and obligations. It is easily enacted
and as easily repealed. A Constitution, by contrast, is drafted with
an eye to the future. Its function is to provide a continuing
framework for the legitimate exercise of governmental power and,
when jointed by a Bill or Charter of Rights, for the unremitting
protection of individual rights and liberties. Once enacted, its
G provisions cannot easily be repealed or amended. It must, there-
fore, 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.
H Professor Paul Freund expressed this idea aptly when he ad-
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 947
.<

monished the American Courts 'not to read the provisions of the A
Constitution like a last will and testament lest it become one".

The constitutional provisions cannot be cut down by technical con-
;truction rather it has to be given liberal and meaningful interpretation.
The ordinary rules and presumptions, brought in aid to interpret the
statutes, cannot be made applicable while interpreting the provisions of the B
Constitution. In Minister of Home Affairs v. Fisher, [1980] A.C. 3~9 dealing
with Bermudian Constitution, Lord Wilberforce reiterated that a Constitu-
tion is a document "sui generis, calling for principles of interpretation of
its own, suitable to its character".

In S.P. Gupta's case the Court construed the words in Articles 124(2)
c
and 217(1) of the Constitution by taking the clock back by forty years. The
functioning of the Apex-Judiciary during the last four decades, the expand-
ing horizon of, 'judicial review', the broader concept of 'independence of
judiciary', practice and precedents in the matter of appointment of judges
which ripened into conventions and the role of the Executive being the D
largest single litigant before the Courts, are some of the vital aspects which
were not adverted to by this Court while interpreting the constitutional
provisions. The Court did not keep in view the well established rules of
constitutional- interpretation. We are, therefore, justified in re-opening and
reconsidering the questions already determined by this this Court in S.P. E
Gupta's case.

Independence of Judiciary

The Constitution of India which we have given to ourselves is the
fundamental law of the land. The Judiciary, under the Constitution, is p
designed to be an intermediary body between the people on the one side
and the Executive on the other. It belongs to the Judiciary to ascertain the
meaning of the constitutional provisions and the laws enacted by the
Legislature. In order to keep the Executive/Legislature within the limits
assigned to their authority under the Constitution, the interpretation of
laws is the proper and peculiar province of the Judiciary. Constitution is G
the "will" of the people whereas the statutory laws are the creation of the
legislators who are the elected representatives of the people. Where the
will of the legislature - declared in the statutes - stands ·in opposition to
that of the people - declared in the Constitution - the will of the people
must prevail. The Constitution of India provides for an elected President. H
948 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

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

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

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

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

"I do not think there is any dispute that there should be separation
between the executive and the judiciary and in fact all the articles
relating to the High Court as well as the Supreme Court have
H prominently kept that object in mind."
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 949

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

"Historically, the generally accepted core of the principle of judi- C
cial independence has been the complete liberty of individual
judges to hear and decide the cases the come before them: no
outsider - be it government, pressure group, individual or even
another judge - should interfere in fact, or attempt to interfere,
with the way in which a judge conducts his or her case and makes
his or her decision. This core continues lo be central to the D
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 E
to the modern needs and problems of free and democratic
societies. The ability of individual judges to make decisions in
discrete cases free from external interference or influence con-
tinues, of course, to be an important and necessary component of
the principle. Today, however, the principle is far broader. In the
words of a leading academic authority on judicial independence, F
Professor Shimon shetreet : ''The judiciary has developed from a
dispute-resolution mechanism, to a significant social institution
with an important constitutional along with other institutions in
shaping the life of its co=unity ........ "
")
G
There is, therefore, both an individual and a collective or institu-
tional aspect to judicial independence. As stated by Le Dain, J.
in Valente v. The Queen, (1985] 2 SCR 673, at pp. 685 and 687 ;'

"(Judicial independence) connotes not merely a State of mind
or attitude in the actual exercise of judicial functions, but a H
950 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

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

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

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

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

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

We respectfully agree with the concept of judicial independence as
enunciated by the Supreme Court of Canada in the above quote judgment.
G It is not the security of tenure provided to an individual judge which alone
is the source of independence of judiciary but there has to be an inde-
pendent judiciary as an institution. The judiciary in India has to act as an
impartial umpire to resolve disputes between the Government and the
private individuals as well as between the Government inter se. It has also
H to protect the fundamental rights of the individuals guaranteed under Part
ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.) 951

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

The Constitution of India is an elaborate document oonsisting of 395
...., Articles and ten Schedules. Despite that there are Constitutional provisions
- operative in various fields - which are nowhere to be found in the written G
test of the Constitution. For instance it is a fundamental requirement of
the Constitution that if the opposition obtains the majority at the Polls, the
Government must tender its resignation forthwith. Fundamental as it is,
this does not form part of the written law of the Constitution. It is also a
constitutional requirement that the person who is appointed Prime Mini- H
952 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

Two sets of principles, thus, make up the rules of constitutional law.
One set of rules is contained in the written constitution of a country and
E the other set is referred to as the "conventions of the constitution". Con-
ventions are a means of bringing about constitutional development without
formal changes in the law. K.C. Where in his book "The Statute of
Westminster and Dominion Status" (Fourth Edition) defines the conven-
tions as under :
F
"The definition of 'conventions' may thus the amplified saying that
their purpose is to define the use of constitutional discretion. To
put this in slightly different words, it may be said that conventions
are non-legal rules regulating the way in which legal rules shall be
applied."
G
The conventions grow up, around and upon principles of the written
constitutions. Necessary conventional rules spring up to regulate working
of the various parts of the Constitution, their relation to one another to the
subject. Sir W. Ivor Jennings, in his book "Law and the Constitution" (Fifth
H edition) refers to the constitutional conventions in the following words :
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH,J.) 953

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

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

The conventions enable a rigid legal framework - laws tend to be E
rigid - to be kept up with changing social needs and changing political
ideas. The conventions enable the men, who govern, to work the machines.
Dicey in his book "Introduction to the study of the law of the Constitution"
refers to the conventions in the following words :
F
They are multifarious, differing, as it might at first sight appear,
from. each other not only in importance but in general character
and scope. They will be found however, on careful examination, to
possess one common quality or property; they are all, or at any
rate most of them, rules for determining the mode in which the
discretionary powers of the Crown (or of the Ministers as servants G
of the Crown) ought to be exercised; and this characteristic will
be found on examination to be the trait common not only to all
the rules already enumerated, but to by far the greater part (though
not quite to the whole) of the conventions of the constitutions of
the constitution". H
954 SUPREME COURT REPORTS [1993] SUPP. 2S.C.R.

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

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

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

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

In England exercise of the royal prerogative, the functions of the
Cabinet system, the Lords and the Commons, and the judiciary are primari-
ly functioning on the basis of established conventions. To illustrate some
H of the conventions cansidered binding by the Judiciary are as under :
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 955
1. Lay peers ought not to seek to hear appeals before the judicial A
body of the House of Lords.

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

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

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

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

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

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

follow and when they have been followed long enough they acquire H
956 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

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

On the issue of constitutional convention, by majority of 6 to 3, the
Court held that the proposed request to Westminster infringed the conven-
tion that the legislation affecting provincial rights must have provincial
G support. In deciding that the convention existed, the Court adopted the test
laid down by Sir Ivor Jennings (quoted above). The majority concluded
that it would be unconstitutional (i.e. in breach of convention) if the
Trudeau scheme went forward. The judgment dealt separately with the
issues of law and convention. On the second question, the tourt by
H majority of 7 to 2 held that it was lawful for the Trudeau scheme to be
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 957

submitted to Westminster without provincial agreement. The majority held A
that there was no legal rule which limited the power of the Canadian
• Parliament to adopt resolutions seeking amendment. It was further· held
"What is desirable as a political limitation does not translate into a legal
limitation, without expression in imperative constitutional text or statute".
There was no process by which constitutional conventions "crystalised law''.
B
The decision apparently sounds paradoxical. The court following the
tests laid down by Sir Ivor Jennings, found as a fact that the convention
· existed. It also held that the proposed legislation infringed the convention.
• The court even went to the extent of concluding that infringing the estab-
lished convention would be unconstitutional. Having gone that far, the C
logical conclusion could only be that the convention being part of the
constitutional law of the land it had the binding effect and not authority
could have infringed the same. While holding that the constitutional con-
ventions can never crystallised into law the court was primarily influenced
by the concept of a convention as propounded by AV. Dicey. Dicey D
provides a simple working test by which laws and conventions may .be
distinguished. According to him laws are enforced by the courts whereas
the conventions are not. His distinguishing between laws and conventions
has been criticised. Unless the distinction is abandoned according to
Geoffrey Wilson "it is impossible to present constitutional law as a coherent
subject or relate it in a meaningful way to the functions it has to fulfil or E
the social and political context in which it has to operate". (Cases and
Materials on Constitutional and Administrative Law 1966 Edition). Sir Ivor
Jennings did not agree with Dicey. According to Jennings (Law and
Constitution, Fifth edition) there was "no distinction of substance or na-
ture" between the laws and the conventions. He pointed out that there was
F
similarity or inter-action between the two. Both sorts of rule rested upon
general acquiescence, he suggested, and the major conventions were as
firmly fixed and.might be stated with almost as much accuracy as principles
of common law. Professor J.D.B. Mitchell in his work (Constitutional Law)
(Second Edition, 1968) built up further argument of this sort :
G
"Conventions cannot be regarded as less important than rules of
law. Often the legal rule is the less important. In relation to subject
matter the two types of rule overlap: in form they are often not
clearly distinguishable .... very many conventions are capable of
being expressed with the precision of a rule of law, or of being H
958 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

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

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

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

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

G There is abundant authority to show that the Courts have recognised
the existence of conventions and have relied upon them as an aid to
statutory interpretation. In Ryder v. Foley, (1906) 4 C.L.R. 422, the High
Court of Australia held that as a conventional practice it was the minister
who was acting on behalf of the government. Similarly in Commercial Cable
Company v. Govt. of Newfoundland, (1916) AC. 610, the Judicial Commit-
H tee of Privy Council interpreted the word "government" to mean as minister
ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.] 959

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

In U.N.R. Rao v. Smt. Indira Gandhi, (1971),.Supp. SCR 46, the
question before this Court was whether under the Constitution, as soon as H
960 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

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

Articles 124(2) and 217(1) of the Constitution oD.ly identify the
constitutional authorities required to be consulted for appointment of
Judges to the Supreme Court and the High Courts. These provisions do
not provide for the procedure to be followed in finalising the consultative
H process culminating in the issuance of a warrant of appointment by the
ADVOCATES ASSN. v. U.O.l. [KULDIP SINGH, J.] 961

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

Prior to coming into force of the Constitution of India the appoint- C
ments of Federal Court Judges and Judges of the High Courts were made
under Sections 200 a!1d 220, respectively, of the Government of India Act,
1935. The appointments were in the absolute discretion of the Crown. In
other words, the executive, by itself, with no provision at all for consult-
ation with the Chief Justice of India or with the judiciary in the any other D
manner, was the authority to make appointments to the superior judiciary.
. We have, however, contemporaneous evidence to show that under the
Government of India Act, 1935 the said appointments were invariably
made with the concurrence of the Chief Justice of India.

Copies of the Draft Constitution of India were circulated to the · E
Federal Court and the High Courts for eliciting views of the Judges.
Keeping in view the fundamental importance of the document a conference
of the Judges of the Federal Court and the Chief Justices of High Courts
was convene~ to discuss the provisions in the draft Constitution relating to
the judiciary. The conference was accordingly held on March 26 and 27. F
1948. Finally a memorandum representing the views of the superior
judiciary was submitted to the Home Minister and to the Constituent
Assembly. It was specifically stressed in the memorandum that under the
British - Raj the judiciary had, in the main, been independent, but certain
tendencies to encroach upon its independence was becoming apparent. It
was also highlighted that no appointment was ever made without referring G
the matter to the Chief Justice of India and obtaining his concurrence. We
refer to the following paragraph from the memorandum :

"We do not think it necessary to make any"provision in the Con-
stitution for the possibility of the Chief Justice of India refusing to H
962 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

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

People feel that the executive does not work properly. It is the
judiciary that works properly. That feeling is still there. We should
respect such a feeling. Let the Chief Justice of the State and the
Chief Justice of India make the appointment. Why should there
G 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
H happy. They are sure that no other consideration has weighed with
ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.) 963

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

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

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

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

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

"Sir, that has been the position with regard to the appointments in p
the Supreme Court. All the appointments have been made on the
recommendations of the Chief Justice of India. So far as the States
are concerned, as many as 90 per cent of the appointments have
been made in that way. In the remaining 14 or 15 cases the Chief
Justice's opinion has been accepted by the Home Ministry except G
in one case where, before the present Home Minister came into
office the recommendation of the State Chief Justice was accepted
in preference to that of the Chief Justice of India. Therefore, Sir,
it is a most dignified record en the part of the Home Ministry,
namely, the opinion of the Chief Justice of India has prevailed in
every case. H
964 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

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

H I have listened to some of the speeches that were made and also .
ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH,J.] 965

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

(emphasis supplied)

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

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

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

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

From the above discussion the factual position which emerges is as
un~: H
966 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

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

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

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

We may now apply the three tests laid down by Sir Ivor Jennings -
Adopted by us - to the facts of the present case.
F
The first test is What are the precedents? Under the Government of
India Act 1935, which remained operative till 1950, all appointments of
Judges to the Federal Court and the High Courts were made with the
concurrence of the Chief Justice of India. The apex Judiciary in its
memorandum dated March 1948 recorded in writing that the appointments
G of Judges were made under the British - Raj with the concurrence of the
Chief Justice of India on the basis of an established convention. We have
the precedents for the period from 1950 to 1959 and from January 1, 1983
to April 10, 1993. Almost all the appointments during said period )Vere
made with the concurrence of the Chief Justice of India. The precedents
H thus clearly indicate the existence of the convention and, as such, the first
ADVOCATESASSN. v. U.0.1.(Kl:JLDIPSINGH,J.] 967

question, according to us, is complied with. A

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

"ls There a reason the rnle"? Is the third test? thei::e are two primary
reasons in support of the convention that the primacy rests with the F
judiciary. There is no dispute that independence of judiciary is the basic
feature of the Constitution. We have already dealt with in detail the
concept of independence of judiciary and we have come to the conclusion
that the exclusion of the final say of the executive in the mat!er of appoint-
ment of Judges is the only way to maintain the independence of.judiciary. G
If that be so then there cannot be a better reason for reading such a
convention while interpreting Articles 124(2) and 217(1) of the Constitu-
tion. The second and the more important reason for giving weight to the
opinion of the judiciary is that the appointments are made to the "superior
judiciary" and to find out the suitable persons for such appointments the
expertise for that purpose is only available with the judiciary. It is difficult H
968 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

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

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

''After consultation with"

E The expression "after consultation with", in Articles 124(2) and
217(1) of the Constitution, has three angles to its interpretation. What does
"consultation" mean? Is the process of.consultation mandatory? And, three
which of the consultees - Executive or the Judiciary - has a primal say in
the matter? This Court has authoritatively settle the first two questions.
The requirement of consultation is mandatory and there is no d:spute
F regarding the meaning of the word "consultation" as defined by this Court
in-various judgments. The crucial and meaningful question to be deter-
mined is whether the words "after consultation with" can be interpreted to
mean the the Executive is bound by the advice given - in the process of
consultation - by the Chief Justice of India as the head of the Judiciary.
G Mr. F.S. Nariman has taken us through the articles 0f the constitution
wherein presidential appointments to various (non- elective) constitutional
offices are provided. The President appoints by warrant under his hand
and seal Judges of the Supreme Court and Judges of the High Courts
(Articles 124(2) and 217(1)), Comptroller and Auditor General (Article
H 148), Governor of a State (Article 155) and Chair-person, National Com-
ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.] 969

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

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

In the entire range of the presidential appointments, mentioned
above, it is only in the case of judicial offices - District Judges, High Court
Judges and Supreme Court Judges - that the appointments are made after C
consultation with the constitutional functionaries named in the relevant
provisions. According to Mr. Nariman the obvious purpose for this is that
"they know better". Mr. Nariman further c'ontended that the words "after
consult with" must be interpreted and conditioned only by the true nature
and object of such consultation. Relying upon Sharnsher Singh and Anr. v. D
State of Punjab, [1975] 1 S.C.R. 814 and Union of India v. S.C.H. Sheth and
Anr.,[1978] l S.C.R. 423, Mr. Nariman contended that the interpretation
given by this court to the words "after consultation with" in S.P. Gupta's
case is not correct. We see considerable force in the contentions of Mr.
Nariman.
E
As noticed above no consultation is provided for \vith regard to the
constitutional offices - except judicial offices - yet no appointment to the
offices of high constitutional functio.iaries such as the Comptroller and
Auditor General, the Chief Election Commissioner and others, can be
made by the executive without going through some sort of consultative F
process to adjudge the suitability of eligibility of the person concerned. The
specific provisions for consultation with regard to the judicial offices under
the Constitution, clearly indicate that the said consultation is different in
nature and meaning than the consultation as ordinarily understood. The
powers and functioning of the three wings of the Government have been
precisely defined and demarcated under the constitution. Independence of G
Judiciary is the basic feature of the constitution. The Judiciary is separate
and the Executive has no concern with the day to day functioning of the
judiciary. The persons to be selected for appointment to judiciary offices
are only those who are functioning within the judicial sphere and are known
to the Judges of the Superior Courts. The executive can have no knowledge H
970 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

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

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

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

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

"In the light of the scheme of the Constitution we have already
referred to it is doubtful whether such an interpretation as to the
personal satisfaction of the President is correct. We are of the view
that the President means, for all practical purposes, the Minister
G or the Council of Ministers as the case may be, and his opinion,
satisfaction or decision is constitutionally secured when his Mini-
sters arrive at such opinion, satisfaction or decision. The inde-
pendence of the Judiciary, which is a cardinal principle of the
Constitution and has been relied on to justify the de~tion, is
,.ff guarded by the relevant Article making consultation with t~e Chief
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 971

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

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

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

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

We agree with Mr. Nariman that the link between consultation, the
advice given as a result thereof, and the ultimate appointment of the person
about whom there is consultation, is inextricable, malcing the entire process H
972 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

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

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

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

H Before going to the next topic we wish to add that the above'
ADVOCATESASSN. v. U.0.I.(.t<ULDIPSINGH,J.j 973

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

Chief Justice of India - represents the Cowt

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

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

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

"With regard to the question of the concurrence of the Chief H
974 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

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

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

Then, who are the other puisne Judges to be consulted by the Chief
Justice of India and the Chief Justices of the High Courts while making
recommendations for appointments to their respective Courts? It is neither
possible nor the requirement under the Constitution to consult all the
G puisne Judges. We can legitimately assume that there is a practice that the
senior colleagues are always consulted by the Chief Justice of India in the
matter of appointment of Judges to the superior Courts. The Law Com-
mission (under the Chairmanship of Mr. Justice H.R. Khanna) in its
Eightieth Report submitted on August 10, 1979 in paras 6.5 and 7.6
H recommended as under :
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.) 975

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

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

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

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

"a convention should be developed that names from the bar are
""•· recommended by the Chief Justice after consultation individually
or collectively with his fellow judges in the High Court."
G
There are positive indications to show that the Chief Justice of India
had been consulting his senior colleagues in the matter of appointment of
Judges to the superior courts. We are, therefore, of the views that the
opinion of the Chief Justice of India in the process of consultation for
appointments to the superior courts must be formed in consultation with H
976 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

Chief Justice of India - Appointment by selection on Merits

Senior-most puisne Judge of the Supreme Court - barring on two
occasions - has been appointed to fill the office of the Chief Justice of
D India. There is, however, to known method of appointment to the said
office. No objective criteria has either been laid down or established by
convention. The appointment to the highest judicial office in the country
has been, more or less, at the discretion of the Executive. The only
consistency in the said process, we are told, is the practice that the outgoing
Chief Justice of India makes a recommendation, to the Executive, naming
E his successor-in-office. There are instance where the recommendee of the
Chief Justice of India was not the seniormost puisne Judge of the Supreme
Court. The very fact, that the recommendation the outgoing Chief Justice
of India has come to stay as a standing practice, goes to show that there is
no existing convention of appointing the seniormost puisne Judge as the
F Chief Justice of India.
Seniority alone or selection on merit, is the question. The seniority
rule stagnates the system due to lack of enterprise : merit on the other
hand does justice to the selected and brings vigour to the system. In any ., .._
G case, to follow "seniority alone" rule, there has to be some objective basis
for reckoning seniority. Method of appointment and seniority are inex-
tricably- linked. Often, High Court Judges with lower seniority in the same
High Court are selected for appointment to the Supreme Court. Many a
time appointment is of a High Court Judge, to the Supreme Court, who is
much lower in all India seniority. There are many instances where a junior
H High Court Judge was elevated earlier and some time later the senior from
ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 977

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

"This leads us to a related point upon which we have bestowed G
anxious consideration. It has been the practice till now for the
seniormost puisne judge to be promoted to be the Chief Justice
on the occurrence of a vacancy. It would appear that such a
promotion has become almost a matter of course. We have
referred to the high and important duties which the Chief Justice H
978 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

H "It is obvious that the only method in which absolute objectivity
ADVOCATES ASSN. v. U.O.I. (KULDIP SINGH, J.] 979

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

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

The only criticism against the method of selection on merit may be G
that in an atmosphere where correct appraisal is not available and the
objectivity becomes a casualty, the method fails. The criticism has been
proved wrong by the satisfactory operation, over a period of four decades,
of the promotion rules pertaining to the All India Services. In any case this
criticism is wholly irrelevant in the context of Judiciary. There is enough H
980 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

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

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

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

Whether the elevation of a person to the Supreme Court is an
appointment or an invitation is not a matter of substance. The question for
consideration is how to select 26 persons out of a collectivity of more than
G four hundred? it is an important link in the process of appointment/invita-
tion and cannot be left in uncertainty. There can be no doubt that appoint-
ment to the Supreme Court is by way of selection on merit and "seniority
alone" has never been and cannot be the basis. Even otherwise appointment
to such a high office under the Constitution cannot be on the sole criterion
of seniority. Undoubtedly, the selection has to be on the basis of merit but
H the limited role played by seniority in the said process cannot be ignored:
ADVOCATES ASSN. v. U.0.1. [KULQIP SINGH, J.) 981

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

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

We, therefore, fully agree with Verma, J. that apart from justiciability H
982 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

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

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

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

2. The majority view in S.P. Gupta's case (supra) - giving primacy to
the Central Government in the matter of appointment of Judges to the
superior courts - does not lay down correct law andtis over-ruled to that
G 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
H accor~ance with the interpretation given by this Court to Articles 124(2)
.
ADVOCATES ASSN. v. U.O.L [KULDIP SINGH, J.) 983

and 217(1) of the Constitution of India. A
4. The Process of consultation under Article 124(2) means consult-
ation with the Chief Justice of India as head of the Judiciary. The opinion
of the Chief Justice of,India is not his individual but formed collectively by
a body of men at the apex level of the Judiciary. Such collectivity shall
consist of the Chief Justice of India, two senior-most Judges of the B
Supreme Court and the senior Supreme Court Judge who comes from the
State.

5. The Process of appointment under Article 217(1) is to begin with
the recommendation of the Chief Justice of the High Court. He must C
ascertain the views of the two senior-most Judges of the High Court and
incorporate the same in his recommendation. The Chief Justice of India
while examining the recommendation must take into account the views of
two senior-most Judges of the Supreme Court and also the opinion of the
senior Judge conversant with the affairs of the concerned High Court.
D
6. The opinion of the Chief Justice of India, forwarded in the manner
indicated above, shall be primal. No appointment can be ~ade by the
President under Articles 124(2) and 217(1) of the Constitution unless it is
in conformity with the opinion of the Chief Justice of India.

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

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

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

10. A Chief Justice/Justice may be transferred from one High Court H
984 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

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

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

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

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

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

(Kuldip Singh)

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

(J.S. Verma)
H
ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.] 985

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

B
(Yogeshwar Dayal)

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

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

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

(S.P. Bharucha) G
PUNCHHI, J. This opinion is in the nature of an epilogue, though
not in stricto sensu. Much has already been written on the two topics under
reference to this Bench, and on other as well without reference. I on my
part would have liked to avoid making any addition thereto but it seems
H
986 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

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

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

J

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

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

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

Now primacy of the Chief Justice of India, as I conceive could have
two facets; one, institutional but personal to the Chief Justice of India and
the other constitutional. For the institutional primacy a little historical
background would not be out of place. It appears that statutory recognition H
988 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

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

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

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

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

Section 101 of the afore said Act provided that each High Court shall
consist of a Chief Justice and as many other Judges as his Majesty may
F think fit to appoint. Section 103 provided that the Chief Justice of a High
Court shall have rank and precedence before the other Judges of the same
Court, and all other Judges of a High Court shall have rank and
precedence according to seniority of their appointment, unless otherwise
provided in their patents. The experimental measure of Indian participa-
tion, in so far as the judiciary was concerned, augured well, and true to the
G hopes raised a standard was attained in establishing the independence of
judiciary. This was so even while the appointing authority was the Governor
General in Council and not a political government, as we now have,
answerable to its electorate. Thus, a large measure of confidence and-trust
got developed on the judiciary's sense of responsibility. A provision such
H as Section 103, regarding rank and precedence, was therefore not found to
ADVOCATESASSN. v. U.0.I.(PUNCHHl,J.] 989

be necessary to be repeated in the Government of India Act, 1935, A
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 B
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 C
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 Sub-Article (2) of
Article 124, as also under Article 217, the Chief Justice of India has been D
assigned a compulsive consultative role in the matter of appointment of
Judges of the Supreme Court as also the Chief Justices and Judges of the
High Courts. While framing the Constitution, in a memorandum repre-
senting the views of the Federal. Court and the Chief Justices representing
all the Provincial High Courts of the Union of India, held in March 1948,
received and reproduced in B. Shiva Rao's "FRAMING OF INDIAS E
CONSTITUTION" Vol. 4 at page 194, thanks were offered to the system
of administration of justice established by the British in the country and it
.. was noticed that the judiciary until then had, in the main, played an
important role in protecting rights of individual citizens against encroach-
ment and invasion by the executive power. But fear was expressed therein F
that the status and dignity of the judiciary so achieved had become prone
to attempts to whittle down its power, rights and authority. The in-built
retention of rank and precedence of the Chief Justice in the institutional
sense before the other Judges of the same court, be it a High Court of the
state or the Supreme Court of India in the post-Constitution period, is an
·' accepted herachial norm and hence the source of his Institutional primacy. G

Interestingly the word 'rank' in common parlance, as also in English
diction refers to a position, especially an official one, within a social
organisation, of high social order or other standing status. Likewise the
word "precedence" denotes the ceremonial order or priority to be observed H
990 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A on formal occasions, or a right to preferential treatment. In the same strain
the word "primacy" denotes the state of being first in rank or being in
formal state i.e. the most important state. Thus it would be seen that not
only is the word "primacy" inextricably linked up with the words "rank" and
"precedence" but conceptually they all are of the same family and breed,
B block and substance. The Chief Justice of india or the Chief Justice of a
High Court, as the case may be, is known to be primus inter-pares i.e. first
among equals while functioning judicially, but in matters other than judicial
enjoys a unique position of status, rank and precedence by virtue of his
office. This distinction is first borne in. mind and then constitutionally kept
alive, whenever he is referred to singularly in the Constitution in contrast
C to the word 'court' wherever occurring. It is on that basis that his role has
an indivisibility of its own having a primal element.

Legislative history further tells us that prior to the Constitution and
during the British Rule, no law warranted the Executive to consult the
D 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
E 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 to concur with an appoint-
ment proposed by the President, as both were officers of the highest
responsibility, and by then, no such case of such refusal had arisen,
F although a convention existed that such appointment shall be made after
referring the matter. to the Chief Justice of India in obtaining his concur-
rence. It was also suggested that if per chance such a situation were ever
to arise it could of course be met by the President making a different
proposal and no express provision need be made in that behalf. The
suggestion further was that what had been said for the High Court applied
G mutatis mutandis to the appointment of Judges of the Supreme Court. The
Body of Judges further suggested that it was not appreciated why a
constitutional obligation be cast on the President to consult any Judge or
Judges of the Supreme Court or of the High Court in the States before
appointing a Judge of the Supreme Court, there being nothing to prevent
H the President from consulting them whenever he deemed necessary to do
ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.] 991

so. The Constituent Assembly, fully alive to the suggestions of the Body of A
higher Judges of the country, went on to build a positive bridge providing
a compulsive participatory role to the highest judicial functionary, the Chief
Justice of India in recognition of his status and rank, when required to be
consulted by the President, before making appointments in terms of Ar-
ticles 124 or 217 of the Constitution, rather than leaving the appointments B
to the Executive alone. Dr. B.R. Ambedkar's remarks as quoted by my
learned brother Pandian, J. in his opinion are picked up by me to be
reproduced :

"It seems to me, in the circumstance in which we live today, where
the sense of responsibility has not grown in the same extent which C
we find in the United States, it would be dangerous to leave the
appointments to be made by the President, without any kind of
reservation or limitation, that 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 con-
currence of legislature is also not a very suitable provision." D
Then again while replying to the demand of concurrence by the Chief
Justice of Ic.dia in the matter of appointments to the higher judiciary as
raised by some members of the Constituent Assembly, Dr. B.R. Ambedkar
in his winding up debate on the topic said as follows : E
"With regard to the question of concurrence of the Chief Justice ,
it seems to me that those who advocate that proposition seem to
rely implicitly both on the impartiality of the C~ef 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 F
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 ~udges 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 G
there/ore think that this is also a dangerous proposition (emphasis
now supplied)

At this juncture, priorly, the wording of the preamble of the Govern-
ment of India Act 1919 be recalled as to the concept of "sense of respon-
sibility". According to Dr. Ambedkar sense of responsibility had not grown H
992 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A 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
B discretion vested in him to turn down an Executive proposal, since Article
74, in the present form, whereunder the advice of Council of Ministers is
binding on the President, was not there. Then with regard_ to the par-
ticipatory role of the Chief Justice, he viewed that "concurrence" meant
veto upon appointment, which sequally meant making the Chief Justice the
appointing authority, which absolute power the Constituent Assembly was
C not prepared even to vest in the President or the Government of the day.
The clear understanding thus was that even the President or the Govern-
ment of the day too, separating for the moment the ministerial act of
making the appointment under the hand and seal of the President, was not
being given the absolute power to stall an appointment in disregard of the
D recommendation of the consultee Chief Justice of India by becoming itself
a consuree and assuming to itself the power of veto and becoming sequally
the effectual Appointing Authority. Suspicion in the Constituent Assembly
was thus cast on both the exclusive roles of the participants and hence the
concept of plurality was introduced in the exercise at that level and at that
level alone.
E
This, as is apparent, resulted in Articles 124 and 217 in the form as
they are. Though out of the competing words 'consultation' and
'concurrence', consultation held the field, being conciliatory and courteous
word, but it was viewed that the Chief Justice of India could not be allowed
F to have a veto power upon the appointment of Judges when a requisite
proposal was made by the President. Likewise, the emphasised words in
Dr. Ambedkar's statement, which have failed to get due attention hither-
tofore, suggest the contemporaneous thinking of the time that an identical
power of veto was also not vested in the President or the Government of
the day. The first extraction is supportive of the view that it was felt
{
G dangerous to leave the appointments to be made by the President without
any kind of reservation or limitation, that is to say, merely on the advice of
the Executive of the day. This was apparently in the keeping of Article 74
as it then was. The advice of the Council of Ministers is now binding. It
means that in so far as the President is concerned the subject of appoint-
H ment of Judges of the higher lot is left between the Chief Justice of India
ADVOCATES ASSN. v. U.O.I. [PUNCHHI, J.] 993

and the Prime Minister (Law Minister including) and he would go by the A
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
B
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.

.•>
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 C
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 D
Founding Fathers, must translate themselves through the words of the
< + Constitution. Greatest problems of the time are also not solved merely by
interpretations made to suit the occasions. There are other legitimate
modes available in passing through the tunnel of words employed by the
Constitution. Majorities to byepass the words also not the answer. For the
problem in hand look to the facts and figures given by the Government of E
India, where the opinion of the Chief Justice of India was overruled by
making appointments of persons disapproved or not recommended by him.
The affidavit of Mr. S.K. Bose dated April 2 1993 States that out of a total
of 547 appointments made in the last decade, 540 were in accordance with
the opinion of the Chief Justice of India and the remaining seven were not F
in such accord. We have not been provided with the details as to which
court they related to except that out of those seven questionable appoint-
ment five were made in 1983, one in 1985 and one in 1991. This is the fall
out of S.P. Gupta's case. It is left to guess if those were related to the High
Courts, and were they, made, at least, in accordance with the opinion of
the Chief Justice of the respective High Courts. In any case the affidavit G
does not state that those appointments were made even against the opinion
of the Chief Justice of the High Court besides that of the Chief Justice of
India. Otherwise, but for these aberrations, for which the Executive has
given out to make amends in various forums, the executive has conceded
primacy to the opinion of the Chief Justice of India which is reflective from H
994 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A the factum of 540 appointments going through with his concurrence. Thus
from the contemporaneous views of the time when the Constitution was
adopted and from its actual working in the years thereafter, the positions
which emerges is that the consultee has remained an effective consultee
and no one out of the two has the primal power to silence the other. The
B two high effectual constitutional dignitaries, such as the Prime Minister of
India aided by the Law Minister, if any, and the Chief Justice of India are
expected to interact in a spirit of mutuality and accommodation, and not
act at cross purposes. The speech of Dr. Rajendra Prasad as President of
the Constituent Assembly when moving for adoption of the Constitution of
India, which stands extracted in detail in the majority opinion is worth
C reproduction here in part :

"We have prepared a democratic Constitution but successful work-
ing 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
D
written in the Constitution are done by convention. Let me hope
that we shall show those capacities and develop those conventions." .... -

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
E 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-up-
manship 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
F 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 discharged by both as a sacred duty without a sense
G of superiority to either of them. In a parliamentary set up, such as ours,
the elected government headed by the Prime Minister is a government of
the people. The judiciary too is appointed, though indirectly, by th people,
through the joint effort of the constitutional functionaries. The prople's
expectations of them can appropriately be depicted from a matrimonial
court scene where the child of warring spouses when asked to whom he
H would prefer to live with expressed his fond desire of living with both of
ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.) 995

them. The child for its well-being needs both the parents. The plurality thus A
lies in working together, minimising the areas of conflict ironing out
differences, chosing the appropriate time for interaction, shelving con-
troversial proposals and not letting thelll block other appointments which
can by mutual discussion go through to serve the people; the aim being
that the Supreme Court and the High Courts shall not remain starved of B
Judges.

Thus S.P. Gupta's case, as I view it, in so far as it goes to permit the
Executive trudging the express views of disapproval or non. recommenda-
tion made by the Chief Justice of India, and for that matter when appoint-
ing a High Court Judge the views of the Chief Justice of the High Court, C
is an act of impermissible deprival, violating the spirit of the Constitution,
which cannot he approved, as it gives an unjust and unwarranted additional
power to the Executive, not originally conceived of. Resting of such power
with the Executive would be wholly inappropriate and in the nature of
arbitrary power. The constitutional provisions conceives, as it does, D
plurality and mutuality, but only amongst the constitutional functionaries
and not at all in the extra-constitutional ones in replacement of the
legitimate ones. The two functionaries can be likened to the children of the
cradle, intimately conn~cted to their common mother -the Constitution.
They recognise each other through that connection. There is thus more an
obligation towards the tree which bore the fruit rather than to the fruit E
directly. Watering the fruit alone is pointless ignoring the roots of the tree.
The view that the two functionaries must keep distances from each other
is counter productive. The relationship between the two needs to be
maintained with more consideration.
F
Now let us view the relationship of the Chief Justice of India which
his puisne Judges. The Union Judiciary i.e. the Supreme Court oflndia ·
under Article 124 consists of a Chief Justice of India' and other Judges in
terms thereof. The language employed is plain and unambiguous, distin-
guishing 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 G
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 H
996 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A that score either in the context or in the spirit of Article 124. In comparison
the matter of appointment of Judges of the Supreme Court is his constitu-
tional function. The Chief Justice of India on the plain language of Article
124(2) is always singularly to be consulted by the President of India before
making an appointment, whereas, in contrast, his puisne judges are
B separately referred to be barely falling in the consultation zone and that
too at the option of the President. Obtaining of their opinion is not
compulsory. The option resting with the President is of course purely
discretionary. The President may overloo~ all the Judges of the Supreme
Court and all the Judges of the High Court and consult instead a High
Court Judge junior most in rank from a remote corner of the country. The
C only limitation set for the purpose is that consultation by the President can
only be sought from within the members of the higher judiciary so ear-
marked. This too demonstrates in contrast the singular position of the
Chief Justice of India. The Chief Justice of India is one of the Judges in
Supreme Court in the judicial sense. But he is the Chief Justice of India
D through out the territory of India which encompasses various High Courts
and other courts in the hierarchy. No functioning High Court Judge, and
others to be appointed later, could have and can escape the touch of his
approving wand. In every High Court appointment he has an effective role
to play. High Court appointments advisedly are not left to be just a local
affair. The Constitution thus has put the Chief Justice of India at a primal
E position of certification in letting enter by his approval persons to the
judicial family of which he is the pater familias. Correspondingly to that
right is his duty to oversee performance of Judges in the High Courts as
otherwise the power in his hand towards transfer of judges from one High
Court to another under Article 222 could meaningfully be not employed.
F In that sense the Chief Justice of India is administratively knit to the
judiciary in the country but this knitting is primarily his and not that of the
Supreme Court.

The majority opinion, as I have been able to discern and gather,
concludes to obliterate this distinction. It follows a path leading to a
G destination unknown to the Constitution. It is said that Rule of Law is a
basic feature of the Constitution permeating the whole constitutional
fabric. I agree. Independence of the judiciary is an essential attribute of
Rule of Law, and is part of the basic structure of the Constitution. To this
I also agree. The law whatever be its length or sweep, has some end,
H wherefrom if human discretion holds the field then that would lead either
ADVOCATES ASSN. v. U.0.1. (PUNCHHI, J.] 997

to justice or injustice, reasonableness or arbitrariness. Now this skepticism, A
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 B
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 Jaw. As a result the discretion vesting in one
individual (the Chief Justice of India) on the suspicion of its being un-
reasonable and arbitrary need bi:: snatched and handed over fictionally to
the country's judiciary of the higher echelons as a body but actually to body C
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 D
in the said Article be read symbolic of his representing the judiciary as a
whole. It is also suggested that in actual practice he must be one in a body
of men, i.e. he with two of his colleagues in order of seniority, and
collectively as an oligarchy, recommending appointment of judges to the
Supreme Court, and. likewise in a body of more than those two, in the
matter of appointment of Chief Justices and other Judges of the High E
Court. This is the barter which the Chief Justice of India must accept to
get back from the Executive his Jost primacy. He must forever muzzle his
singular voice. The individual voice of the Chief Justice of India shall just
be at par with the voices of the afore-referred to men composing that body.
All such voice, termed as collective wisdom, in writing would be sent to F
the Central Government recommending appointment of judges to the
higher judiciary. By this collectivity, concievably not always unanimous,
assumption is made that it could have the loudest voice reverberating. And
such voice would ha~e "greater weight" as compared to other constitutional
functionaries who would have "due weight". Further the Executive, time
bound, would be required to react an on its failure to do so effectively, it G
would be obligatory on its part to advise the president on the action
proposed by this oligargic group. Lastly it is suggested that since appoint-
ments routed through its method would assumptively be with the approval
of the judiciary as a class, there shall then be no occasion or scope of
H
998 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A judicial review over any appointment except to the limited extent of lack
of qualifications of the appointee. And it is by this method, it is said, that
the right people would be inducted in the judiciary. Nothing, in my view,
could be more violating in letter and spirit of the language and scheme of
the Constitution, disturbing equilibrium on which it rests, and hard hit on
B it basic structure and basic features especially in the denial of judicial
review. And on such interpretation the President henceforth cannot solicit
consultation with any Judge in the country under Article 124(2) of the
Constitution, for the voice of all Judges now is to be found in the symbol-
ized Chief Justice. I respectfully therefore disagree \vith the majority
opinion. I foresee a storm of conflict brewing in its application. If by this
C method it is thought to prevent the Executive element 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,
D 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
E possession.

A centuries old Baconian example given to describe the plight of a
litigant coming to a court of law comes to my mind. It was described that
when the sheep ran for shelter to the bush to save itself from rain and hail,
p 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 Central
Government i.e. the Law Minister and the Prime Minister were fouud to
be in a dominant position and could even appoint a Judge in the higher {
G judiciary despite his being disapproved or not recommended by the Chief
Justice of India and likewise by the Chief Justice of State High Court.
Exception perhaps could be made only when the Chief Justice was not
emphatic of his disapproval and was non-committed. His stance could in
certain circumstance be then treated, as implied consent. These would of
course be rare cases. Now in place of the aforesaid two executive heads
H come in dominant position, the first and the second puisne, even when
ADVOCATES ASSN. v. U.O.I. (PUNCHHI, J.] 999

disagreeing with the Chief Justice of India. A similar position would A
emerge when appointing a Chief Justice or a Judge of the High Court. Thus
in my considered view the position of the institution of the Chief Justice
being singular and unique in character under the Constitution is not
capable of being disturbed. It escaped S.P. Gupta's case, though in a
truncated form, and not to have become totally extinct, as is being done B
now. Correction was required in that regard in S.P. Gupta's case, but not
effacement.

The suggestion that our judiciary is traditionally apolitical and it
needs to secure a non-political combination on having a larger say in the
appoinrment of members of the higher judiciary is perhaps overly stated. C
In the experience of working of the Constitution and the judicial system it
becomes manifest that what was traditionally a non-political field, when
courts were deciding disputes between citizen X & citizen Y, there grew
additions of conflicts between the citizen and the State, enforcement of
fundamental rights, redress of human rights violations, public interest
litigation, enforcement of policy matters and the like.Any topic under the D
sky, subject to inherent limitations, is open for judicial review in the higher
judiciary. Not only do we strike down in judicial review executive, ad-
ministrative or quasi-judicial action and dismantle what appears to us to
be offensive, still in numerous cases we have gone further to lay guidelines
and done affirmative action. In doing so, have we not taken over political E
fields? Have we not in many an instance guided the functioning of a
particular wing of the government and directed it to be run in a particular
fashion and monitor its progress? Have we 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 example; would hardly be
necessary to hammer the point. There is nothing to feel shy in stating that F
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 Govern-
ment. Judicial activisms in various governmental fields, executive and legis- G
lative, 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 :

H
1000 SUPREME COURT REPORTS (1993] SUPP. 2$.C.R.

A "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 political
B problems as of today. Their solutions could never be entirely non-political.

Referring back to Article 124 and 217, in so far as the role of the
Chief Justice of India is concerned, the plain language employed therein
suggests that the proposal for an appointment must emanate from the
C President of India. Conventionally it is just the reverse and for sound
practical reasons. The proposal now emanates, and should keep emanating,
from the Chief Justice of India, in so far as the Supreme Court appoint-
ments are concerned, and from the Chief Justice of the High Court, in so
far as the High Court appointments are concerned, to which the Chief
D Justice of India is a very important consultee. To have developed such
convention is pure and sound logic. The qualifications for appointment of
Judges to the Supreme Court, as well as to the High Court, have in
unmistakable terms been laid in the Constitution, and those being that one
has either to be a Judge functioning ~n the High Court, or the District
E Court, as the case may be, or a lawyer of a particular standing for both the
courts, and a jurist for the Supreme Court. Search would obviously have
to be made in areas to which judges and lawyers flock to or function, for
they are the dominant contributories to the manning of the Bench Plainly
that area is the courts where the High Court, controls or oversees the
functioning where the faculties and talent of both Judges and Lawyers are
F at their fullest display, functioning as they do not public gaze, facilitating
to some extent a choice. Strong common sense leaves the act of proposing
a name to the Chief Justice of the court concerned, he being the longest
tenured and having gained the longest experience in men. Besides knowing
about the legal acumen of the person under consideration, the Chief Justice
G has opportunity to notice his behaviour and court-craft and the fairness
with which he deals with the court, client and opposing counsel. The Chief
Justice has various means to know about the general reputation of the
person under consideration. Yet the search, as said before, traditionally is
to look for a gentleman, a man of honesty and integrity for the discovery
H of which the Chief Justice may not be fully equipped. These attributes are
ADVOCATES ASSN. v. U.O.I. [PUNCHHI, J.] 1001

reflected to some extent in the formal atmosphere of the court but most A
of them outside the court. The proposal cannot, and 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 informa-
tion about the character, honesty, integrity gentlemanliness, and a host of
other attributes are supplied by the Executive. The Executive also is in a B
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 C
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
Execulive as are areas in which difference of opinion may surface in
assessment. Both need to entwine to help emerging appropriate acceptable D
appointments both to the Chief Justice of India and the Executive. In
crystalising their views and conclusions, no window of information can be
kept closed. They are entitled to draw and -solicit light from all genuine
and permissible quarters since there is no bar to that effect under the
Constitution. It is left exclusively to the Chief Justice of the Supreme Court E
or the High Court, as the case may be, to consult any number of Judges
on the particular proposal. It is equally within his right not to consult
anyone. This is his constitutional primacy and prerogative. A division,
artificial on the face of it, cannot tilt in favour of the Chief Justice by
assigning to him more knowledgability of a proposed appointment than F
other functionaries and on that basis a primacy, leaving the opinion of
others for due regard. As said before, the whole personality of the person
under considerations is to undergo the test of acceptability at a joint level.
) Knowledge of law alone is not a tilting factor.

A statement of Lord Diplock from Duport Steels Ltd. v. Sir & Ors., G
has been quoted by my learned brother Ahmadi, J. In his opinion. That
seems to be wholly apt in guiding what we are handling. There is clearly
no principle of consideration which would justify reading into the plain and
simple words of Article 124(2) any additional words to suggest that the
H
1002 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Chief Justice of India as described therein is only in a symbolic sense,
representing the judiciary. It cannot be said that the Chief Justice heads a

B
monastic order, entry of which is regulated by the Order as a class, and its
head merely a spokesman. No one de1mde him of the role to which he is
constitutionally entitled. Equally it is difficult for me to agree to a construc-
tion of the provision that the proposal initiated by him, or related to a
c
High Court appointment, which passes through him, when approved by the
executive goes as affirmance of his primacy. I would rather go by the
scriptural thought that when one says. and the other agrees, both be known
as wise.

C With regard to the role of tl!te Chief Justice of India vis-a-vis the
Chief Justice of the High Court in making appointments to the High Court,
I would favour their views to coales1:;e because on that depends discipline
in the judicial family. As said above, the appointments to the High Court
are not a local affair or a State subject. At times local affairs may appear
D messed up and complicated which cannot be conducive to the 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 Hiigh Court to another. Those transfers
E 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 Just'ice of India, in my view, to the proposal,
should there be a difference, unexpected though, be the determining factor.
F 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 Jm.tice 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
G Court; the Supreme Court being just another. As a wing of the political set
up, the judiciary is one whole, knitted hierarchically under the Constitution
in the manner suggested earlier and in the preceding paragraphs, and by
allocation of specific roles.

H 'rransfers of Judges from one High Court to another is almost the
ADVOCATES ASSN. v. U.O.I. [PUNCHHl,J.] 1003

judiciary's internal affair. The role of the Chief Justice of India in that A
regard is primal in nature because this being a topic within the judicial
I
family, the Executive cannot have an equal say in the matter. Here the word
'consultation' would shrink in a mini form. Should the Executive have in
equal role and be in divergence of many a proposal, germs of indiscipline
would grow in the judiciary. For instance take the case of a recommenda- B
tion made by a Chief Justice of the High Court to which the Chief Justice
of India is in dis-agreement, and the Executive preferring the view of the
Chief Justice of the High Court makes the appointment and which Judge
is recommended to be transferred by the Chief Justice of India to another
High Court. In the first place, preferring the opinion of the Chief Justice C
of the High Court over and above that to the Chief Justice of India erodes
the primacy of the Chief Justice of India based on his status, rank and
precedence constitutionally noticed, and in the second place, recommen-
dation of transfer of that Judge to another High Court, makes the proposal
suspect. This obviously is a breeding ground of indiscipline. So the role of
the Chief Justice of India in the matter of appointment of Judges of the D
High Court and their transferability are connected matters which cannot
be divorced on the mere fact of the possibility of their separate happenillg.
The role of the Chief Justice of India in this twin subject has to be viewed
from the self angle, i.e. to subserve the independence of judiciary in the
interest of the Indian people. E
Thus on the question of primacy I conclude to say that the role of
the Chief Justice of India in the matter of appointments to the Judges of
the Supreme Court is unique, singular and primal, but participatory vis-a-
vis the Executive on a level of togetherness and mutuality, and neither he
nor the Executive can push through an appointment in derogation of the F
wishes of the other. S.P. Gupta's case to that extent need be and is hereby
explained away restoring the primacy of the Chief Justice. The roles of the
Chief Justice 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 G
Executive cannot prefer the views of the Chief Justice of the fligh 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
H
1004 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A 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 in-working of
the judiciary.

I am in dis-agreement, though regretfully but respectfully, with the
t
B 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 Constitu-
tion, as symbolic in character and to his being a mere ·spokesman repre-
senting the supposed vies of entire judiciary. I also dis-agree, likewise, in
the creation of and vesting of powers assumed, in the hands of the oligarcy
C representing the judiciary as a whole created by adding words to the
Constitution by interpretative exercise so to silence the singular voice of
the Chief Justice of India of ever. I also disagree to the denial of judicial
review on the subject on the supposition that it would be the judiciary's
act, as that is against the basic structure of the Constitution. Subject to the
D views afore-expressed, I am, by and large, in respectful agreement with the
opinion of my learned brother Ahmadi, J. Necessarily and sequally, save
to the views afore-expressed by me, I am in respectful dis-agreement with
the view of my learned brethren Pandian and Kuldip Singh, JJ. since they
are supportive of the majority view, save and except where their views
E accord with mine and that of brother Ahmadi, J.

Since neither before the referring bench nor in the pleading was any
point raised as to the. innovation and application of service jurisprudence
to the induction into the higher judiciary, or to the concept of reasonable
expectations, I do not feel obliged to even touch these questions. It needs
F also to be added that nothing ever was projected before us on these r
subjects as indicated. As stated in the outset we did not have the benefit
of a discussion inter-se on which the desirability of going into these aspects
may have been gone into. The majority has expressed views thereon without
alerting counsel appearing and others concerned. A lot can be said against
G such views of the majority out for the present the comment be kept
reserved. I would rather desist conviction on the subject and prefer to ·
remain advised. So, in my view, on this aspect, the opinion is obitor.
Consideration on these points was wholly unnecessary on the rigid terms
of the reference. For such view I am with respect in disagreement with the
H majority.
ADVOCATES ASSN. v. U.O.I. fPUNCHH!, J.) 1005

On the question of justiciability of the Judge-strength, I have nothing A
useful to add.

While parting with this op1mon, I join hands with my learned
brethren in recording my sense of gratitude to the galaxy of men who
addressed us at the bar in this venture, which could aptly be called a labour
of love, and to have enlightened us on the subject with their professional· B
skill, analysis and wisdom.

I agree to the disposal of the reference leaving however a note of
skepticism - Was it worth it?

N.P.V. Matters disposed of. C