Holding

The normal rule is that a sitting High Court judge should be appointed as Executive Chairman of a State Legal Service Authority; a retired judge may be appointed only in exceptional circumstances.

Summary

The Supreme Court Bar Association filed a writ petition under Article 32 challenging the appointment of retired High Court judges as Executive Chairmen of State Legal Service Authorities, alleging it contravenes the Legislative Services Authorities Act, 1987 and hampers the authorities' effectiveness. The petition highlighted that most states have sitting judges in the role, but a few states, including Orissa, have appointed retired judges, raising concerns of favouritism and lack of transparency. The Court examined Section 6(2) of the Act, noting that while it permits a serving or retired judge to be nominated, the legislative scheme and the functions of the Authority imply a preference for a sitting judge. The Court found no satisfactory justification for deviating from the long‑standing practice of appointing sitting judges and observed deficiencies in the appointment process, especially in Orissa. Consequently, the Court directed all concerned states to reconsider the appointments, consult the respective Chief Justices, and ensure a sitting judge is appointed, with compliance required within four months. The writ petition was allowed.

Issues considered

Whether the appointment of a retired High Court judge as Executive Chairman of a State Legal Service Authority is permissible under Section 6(2) of the Legal Services Authorities Act, 1987.
Whether such appointments defeat the legislative intent and impair the functioning of the State Legal Service Authorities.
Whether states must revisit and replace retired judges with sitting judges as Executive Chairmen.

Legislation cited

Legal Services Authorities Act, 1987s. 6(2)

Subjects

Legal Services AuthorityExecutive Chairmanretired judgesitting judgeSection 6(2)Legal Services Authorities Act, 1987Article 32favouritismwrit petition

Judgment

A SUPREME COURT BAR ASSOCIATION
v. )-
UNION OF INDIA AND ORS.

APRIL 13, 2007

B [DR.ARIJITPASAYAT AND D. K.JAIN,JJ.]

Legal Services Authority Act, 1987-Section 6(2)-Retired judge-
Appointment of. as Executive Chairman of State Legal Service Authority--
Challenge against-Held: For the post of Executive Chairman of State Legal
c Service Authority, normal rule is that the appointment should be of a sitting
judge-Only in case of difficulties, retired judge may be appointed by way
of exception since there is ample scope offavouritism in case retired Judge
is appointed States concerned directed to reconsider the appointment of
retired judge and do the needful in consultation with the Chief Justice
D concerned.

Under section 6(2) of the Legal Services Authorities Act, 1987 serving
or retired Judge of the High Court can be nominated by the Governor in
consultation with the Chief Justice of the High Court as the Executive
Chairman of the State Legal Service Authority.
E
The present writ petition was filed on the ground that the appointment
of a retired Judge as Chairman of the concerned State Legal Service Authority
in different States fell foul of the desired legislative effect; and it had the
effect of stalling the effectiveness in functioning of the State Legal Service
Authorities.
F
Allowing the appeal, the Court

HELD: 1.1. Several difficulties have been encountered in case a retired
Judge is appointed as a Chairman. Most of the States and the Union
Territories have accepted the genuineness of the problems. Except four States
G i.e. West Bengal, Uttar Pradesh, Uttaranchal and Manipur in other States
and the Union Territories sitting Judge is functioning as Executive Chairman.
In the State of Orissa prior to passing of the impugned order dated 12.1.2007 _,,,_
a retired Judge had been appointed as the Executive Chairman. In line with
the order dated 12.1.2007 presently in the State a retired Judge is functioning
H %
- -(
SUPREMECOURTBARASSOCIATIONv. U.0.1.

as the Executive Chairman. There is scope for favouritism in case a retired
Judge is appointed in preference to a sitting Judge. Several instances have
97
A

been highlighted. National Legal Service Authority accepted in its affidavit
that the functioning of the State Legal Services Authorities where retired
Judge have been appointed as Chairmen is not satisfactory.
[Para 2) (99-E, F, G]
B
1.2. Though the allegation of any preferential treatment has been denied
in the affidavits of all states, the case of State of Orissa is quite disturbing.
_.,., This Court directed production of file relating to appointment of retired Judge
as Executive Chairman. The Registrar of the Orissa High Court in a
communication to this Court stated that there was no file available in the High
Court and he had collected copies of certain documents from the Principal
c
Secretary of the Chief Justice of the High Court. This Court sought
clarification as to under what circumstances record/file was not maintained
and as to how the documents were in the possession of the Principal Secretary
without they being brought on record. The statement of the Principal Secretary
is very revealing and disturbing. It speaks volumes about the lack of D
transparency in the matter. The reasons indicated for taking a departure from
the earlier practice of appointing sitting Judges also reveals some interesting
factors. Only reason which can be inferred from the letter is that the workload
has increased and the paucity in the number of Judges. The action of the then
Chief Justice was not principle-oriented but was person-oriented. Even in the
letter addressed to the Government, the then Chief Justice had suggested the E
facilities to be provided to the Judge concerned. This is not required as a part
of the consultation process. Therefore, there is ample scope offavouritism in
appointment of a retired Judge. (Paras 6, 7 and 8) (103-B C, D; 105-A, D, E)

1.3 In some cases earlier a sitting Judge was functioning as the
F
Chairman of the State Legal Service Authority. No reason could be found as
to why a departure from the long standing practice of appointing a sitting
Judge as the Chairman of the State Legal Service Authority was departed
from. [Para 9) (105-E, F)

- 1.4. The stand taken by State of West Bengal in the affidavit that the G
sitting Judges of the High Court are heavily burdened with judicial work and
hardly it would be possible for them to afford sufficient time for implementing
~
the legal aid programme for the entire State that if any sitting Judge of the
High Court is appointed Chairman of the State Legal Services Authority, his
post as Judge of High Court shall have to be kept vacant for his return at any
time and the litigant public will suffer for such vacant post of Judge and on H
98 SUPREME COURT REPORTS [4007) 5 S.C.R.

A the contrary if any additional post of Judge in the High Court is created for
-
such purpose with additional staff that will involve huge financial liability on )·
State exchequer without fruitful purpose, and that the sitting Judge may not
like to mix with general public who want to take legal aid, are not only
confusing but also without any basis. [Paras 10 and 111

B 1.5. Some of the State Governments have asked for panel of names to be
given. Calling for such panel in essence results in substitution of objectivity
with subjectivity. This is to be avoided. Though in terms of Section 6(2) retired
Judge can be appointed, but that shall have to be in exceptional circumstances.
The advantage of having a sitting Judge as the Chairman far outweigh the
c disadvantages, some of which have been highlighted by the States where retired
Judges are appointed. Therefore, normal rule is that a sitting Judge should
be appointed as the Chairman and only when unusual difficulties exist, a retired
Judge may be appointed. That has to be the exception and not the rule.
[Para 121 [106-B, C, DI

D 1.6 In some States the retired Judges have functioned for some time.
The concerned State Govtrnments are directed to re-consider the matter with
the consultation of the Chief Justice of the concerned State and do the needful
within a period of four months. [Para 13) [106-D, El
.<...

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 27 of2007.
E
(Under Article 32 of the Constitution of India)

Gopal Subramanium, ASG., Aruneshwar Gupta, (Raj.), J.S. Attri (H.P.),
Manjit Singh, Rachna Srivastava, AAGs., M.N. Krishnamani, Sarup Singh,
Ratnakar Dash, K.C. Kaushik, Rahul Kaushik, Soumyajit Pani, Sunil Kr. Jain,
F Gaurav Agrawal, P. Parmeswaran, Ashok Bhan, Varuna Bhandari Gugnani,
D.S. Mahra, Sibo Sankar Mishra, Pratap Sahani, N.K. Neeraj, Kuldeep Singh, ... _
~

R.K. Pandey, Arun K. Sinha, Vikrant Singh, Bais, B.S. Banthia, A. Subhashini,
Naveen Kumar Singh, Mukul Sood, Shashwat Gupta, Anis Subrawardy, Anitha
Shenoy, Supama Srivastava, Nidhi Minocha, Rajesh Srivastava, Riku Sharma
G
(for Corporate Law Group), K.N. Madhusoodhanan, R. Satish, Gopal Singh,
Anukul Raj, Anil Shrivastava, Tara Chandra Sharma, Neelam Sharma, Rajiv
Sharma, Irshad Ahmad, D. Bharthi Reddy, P. Vinay Kumar, Sncha Bhaskaran,
Harikesh Singh, T.V. George, Kh. Nobin Singh, S. Biswajit Meitei, David Rao,
-
Hemantika Wahi, Shivangi, J.K. Bhatia, S.S. Shinde, V.N. Raghupathy, A.
Mariaputham, Aruna Mathur (for Arputham, Aruna & Co.), Ranjan Mukherjee,
H Gopal Singh, PN. Dinesh, Meeakshi Arora and Ajit Kumar Sinha for the
- SUPREMECOURTBARASSOCIATIONv. U.0.1. [PASAYAT,J.]

appearing parties.
99
A
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. I.This petition under Article 32 of the
Constitution of India, 1950 (in short the 'Constitution') has been filed by the
Supreme Court Bar Association raising points of considerable importance. It B
is the case of the writ petitioner that appointment of a retired Judge as
Chairman of the concerned State Legal Service Authority in different States
falls foul of the desired legislative effect. It is stated that appointment of
retired Judges has the effect of stalling the effectiveness in functioning of the
State Legal Service Authorities. With reference to Section 6(2) of the Legal C
Services Authorities Act, 1987 (in short the 'Act'), it is pointed that the
serving or retired Judge of the High Court can be nominated by the Governor
in consultation with the Chief Justice of the High Court. The writ petitioner
has pointed out that under the Act the State Govern!'lent is required to
constitute a body to be called the Legal Service Authority of the State to
exercise the powers and/or assigned to State Authority under the Act. Sub- D
section (2) of Section 6 provides that the State Authority shall consist of the
Chief Justice of the High Court who shall be the Patron-in-Chief and a Judge
of the High Court to be nominated by the Governor in consultation of the
Chief Justice of High Court who shall be the Executive Chairman.

2. Several difficulties encountered in case a retired Judge is appointed E
as a Chairman, have been highlighted by the writ-petitioner. Most of the
States and the Union Territories have accepted the genuineness of the problems
highlighted in the writ petition. It is to be noted that except four States i.e.
West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other ~·ates and the
Union Territories a sitting Judge is functioning as Executive Chairman. In the F
State of Orissa prior to passing of the impugned order dated 12.1.2007 a
retired Judge had been appointed as the Executive Chairman. In line with the
order dated 12.1.2007 presently in the State a retired Judge is functioning as
the Executive Chairman. One of the main grievances of the writ petitioner-
association is that there is scope for favouritism in case a retired Judge is
appointed in preference to a sitting Judge. Several instances have been G
highlighted. In its affidavit filed by the National Legal Service Authority (in
short 'NALSA '), it has been accepted that the functioning of the State Legal
Service Authorities where retired Judges have been appointed as Chairmen
is not satisfactory. The averments in the writ petition which need to be
highlighted is as follows:
H
A
100 SUPREME COURT REPORTS [2007] 5 S.C.R.

"Whereas in regard to the State Legal Authority alone, strangely,
-
'>-
the head need not be a sitting High Court Judge. The relevant
provisions of the Act regarding State Legal Service Authority contained
in Section 6(2) are as follows:

"(2) A State authority shall consist of-
B (a) the Chief Justice of the High Court who shall be the Patron-in-
Chief;
(b) A serving or retired Judge of the High Court, nominated by the
Governor, in consultation with the Chief Justice of the High
Court, who shall be the Executive Chairman; and
c (c) such other members, possessing such experience and qualifications
as may be prescribed by the State Government, to be nominated
by the Government in consultation with the Chief Justice of the
High court."

D The Authority could be headed by a retired judge of the High Court.
For a retired judge, the Act does not prescribe any upper age-limit.
In regard to every other Tribunal, the Act concerned itself prescribes
the upper age limit as 68 years or 5 years tenure. This Act alone does
not prescribe any age limit, or a limited tenure, when it comes to a "'
retired judge. For a sitting judge all limitations as to age etc. come
E automatically since he would hold the post ex officio.

The position of the chairperson of Legal Services Authority at
State Level is very crucial. A sitting judge will be a far better person
and he can exercise his powers more effectively compared to a retired
Judge. Since the head of National Legal Services Authority has to be
F the Chief Justice of India and the head of the District Legal Services ,__
Authority has to be the District Judge, the scheme of the Act should
be understood to be that the head of the State Legal Services Authority
also should be a sitting Judge of the High Court.

Moreover, the provision appears to suggest that the Ist choice
G has to be a sitting Judge, and only when it is not possible to appoint
a sitting Judge, in the alternative, a retired Judge could be considered.
The State Govt. cannot avoid a sitting Judge and go in for a retired _...
Judge straight away.

Even otherwise, when one analyses functions of the State Legal
H
.,,. SUPREMECOURTBARASSOCIATIONv. U.0.1. [PASAYAT,J.] 101
Services Authority, it would be more appropriate to have a sitting A
--(
Judge as its head for effective implementation of the objects of the
Act. The following are the main functions of the Legal Services
Authority at the State Level:

(a) To give effect to the policy and directions of the Central Authority.
B
(b) Give legal service to persons who satisfy the criteria laid down
under this Act;

(c) Conduct Lok Adalats;

(d) Undertake preventive and strategic legal aid programmes; and
c
(e) Perform such other functions as the State Authority may, in
consultation with the Central Government, fix by regulations.

Most of the functions are intrinsically interwoven with the duties
and the powers of the High Court under Article 235 and other Articles
of the Constitution. Even if it is felt that a retired Judge may be of D. •

. .
help, one retired Judge could be accommodated as one of the members
of the State Legal Services Authority.

The petitioner has come to know that in various States in the
country there is a move to take away the Legal Services Authority
from the control of the respective High Court." E
3. It is submitted that even where retired Judges are appointed to head
the Commission, it becomes a never-ending process.

4. In the affidavit filed by NALSA it has been stated as follows:
F
"It is the respectful submission of NALSA that on a true
interpretation of the provisions of the Act, its Preamble and Statements
of Objects and Reasons on one hand and the Constitutional Scheme
under Article 39A and Article 21 and the law declared by this Hon'ble
Court on the other, demand that it would be not only just and proper
but desirable to nominate a serving Judge of the High Court by the G
Governor, in consultation with the Chief Justice of the High Court, to
~ be the Executive Chairman.

Section 7 of the Act lays down the "functions of the State
' Authority" which include besides effectuating policy and directions
of the Central Authority the following:- H
102 SUPREME COURT REPORTS [2007] 5 S.C.R.

A (a) give legal service to persons who satisfy the criteria laid down )--
under this Act;
(b) conduct Lok Adalats; focluding Lok Adalats for High Court
cases;
(c) undertake preventive and strategic legal aid programmes; and
B
(d) perform such. other functions as the State Authority may, in
consultation with [ Central Authority,] fix by regulations.

Section 8 requires the State Authority to act in coordination with
other Governmental Agencies, non-Governmental Voluntary Service
C Institution, Universities, other bodies engaged in a work of promoting
the cause of Legal Services to the poor as also with the Central
Authority.

It is submitted that the Objectives underlying Sections 7 & 8 may be
better achieved with the Constitution of the State Authority in a
D manner so as to nominate a sitting Judge as its Executive Chairman.
It is respectfully submitted that a Sitting Judge of the Hon 'ble High
Court may be able to deal more effectively with Judicial Officers,
Government Officials and Departments. Furthermore, if the nomination
of a retired Judge as the Executive Chairman becomes a rule rather
than the exception, it will become another office to be offered to a
E retired Judge who will not be in a position to effectively deal with
NGOs, Government Authorities or the Judicial Officers including
District Judges and even to persuade the sitting Judges to participate
in the Legal Aid Programmes and activities of the State Authority.

It is further submitted that under the Act Permanent Lok Adalats
F have to be set up in the Government Departments. For this purpose,
the Executive Chairman has to interact with the Chief Ministers and
other Ministers and the Hon'ble Chief Justice of the concerned High
Court. Interaction between a sitting Judge and the Chief Justice can
be more effective and fruitful.
G xx xx xx

It is submitted that to the best information of NALSA, as at -
present, four States have nominated retired High Court Judges to be
the Executive Chainnan of State Authorities constituted and working
in those States. These States are Meghalaya, Uttrakhand, Uttar Pradesh
H
SUPREMECOURTBARASSOCIATIONv. U.0.1. [PASA YAT,J.] 103
and West Bengal having issued Notification accordingly on 15.7.1998, A
·--< July 2003, 20.12.2004 and 10.8.2005 respectively."

5. Learned Additional Solicitor General appearing for the Union oflndia
has stated that the stands taken in the writ petition merit acceptance.

6. Though the allegation of any preferential treatment has been denied B
in the affidavits of all States, we would like to illustrate the State of Orissa's
case. The fact situation is quite disturbing. This Court directed production of
_,,., file relating to appointrni:nt of the retired Judge as Executive Chairman. The
Registrar of the Orissa High Court in a communication to this Court stated
that there was no file available in the High Court and he had collected copies
of certain documents from the Principal Secretary of the Chief Justice of the c
r High Court.

7. This Court by letter dated March 30, 2007, sought for clarification as
to under what circumstances record/file was not maintained and as to how
the documents were in the possession of the Principal Secretary without they
D
being brought on record. The statement of the Principal Secretary is very
. revealing and disturbing. The relevant parts of the statement read as follows:
...•·
''That on I 3. I 2.2006 the then Hon 'hie Chief Justice ( xxx xxx xxx
xxx) directed me to give an Issue Number of the Issue Register
maintained by me in the residential office of Hon 'ble Chief Justice. E
Accordingly, I gave a Number of my Issue Register bearing No.538/
CJ.Res. Dated 13.12.2006 to Hon'ble the then Chief Justice. Since I
was not aware of the contents of the letter to be dispatched in order
to make the required entry of the subject-matter of the letter in the
relevant column of the Issue Register maintained in the residential F
office of Hon 'hie C.J. against the next serial number which I mentioned
before Hon 'ble Chief Justice on I 3. I 2.2006, I humbly requested His
Lordship to indicate the subject-matter and the name of the address
of the letter. Thereupon His Lordship was kind enough to disclose the
subject-matter and the name of the addressee to me which I mentioned
' in the Issue Register. G
J. -t.--- That I am to humbly state that my assistance was not at all taken
in the preparation/typing out of the letter issued under the above
... dispatch Number.

That some times confidential letters are issued by the Hon'ble H
104 SUPREME COURT REPORTS (2007] 5 S.C.R.

A Chief Justice and for that purpose an Issue Register is maintained in
the residential office of Hon 'hie Chief Justice and office copies of all
such letters issued from the residential office of Hon 'hie ChiefJustice
are kept in the residential office files.

I, therefore, humbly request the Hon'ble Chief Justice for the
B office copy of the said letter since the Issue Number was given from
the Issue register maintained in the residential office of Hon 'hie Chief
Justice, but the office copy of the said let/er was not given to me on
that date, which fact I have reflected in the Issue Register to the
effect that "office copy of the letter is with Hon 'hie C.J. ".

c It is humbly further stated that only on 17.I.2007 Hon'ble the
Chief Justice made over the office copy of the D.O. letter No.5381
C.J. Res dated I 3. I 2.2006 to me along with letter No. L dated
8. 12.2006 written by (xxx xxx xxx) Minister of Law to the Hon 'hie
Chief Justice and His Lordship directed me to keep the said two
letters in a separate file. Accordingly I had kept the above two letters
D in a separate file. But in regular course of my official business, I have
also reflected the fact of receipt of the office copy of the said letter
on 17.1.2007 in the Issue Register. The true xerox copy of the relevant
'·
page of the Issue Register is annexed to this Statement as Annexure-
1 for favour of kind perusal.
E
That on getting the copy of the D.O.letter No.538/C.J.Res dated
/3.I2.2006 issued by Hon'ble the Chief Justice to the Law Minister,
I found that the D. 0. Num!Jer and the Date have been mentioned on
the right side of the letter by hand by the Hon 'hie Chief Justice.
Normally we put the D.O. Number on the left side and the Date on
F the right side of the letter by typing out the same. Another aspect I
noticed that when we type out any letter in computer, we justify the
right side margin of the letter, but that was not done in the said D.O.
letter."

(underlined for emphasis)
G •
8. It is not understood as to how and why the letter was not typed in
the residential office and why D.O. number and date was mentioned by the
then Chief Justice and why he wanted to have a dispatch number. Still more
surprising is that the office copies of the letter were not kept in file and only
H after this Court passed the order, the copies were handed over to the Principal
SUPREMECOURTBARASSOCIATIONv. U.0.1. [PASAYAT,J.) 105
--: Secretary. This speaks volumes about the lack of transparency in the matter. A
Additionally, the letter of the Chief Justice addressed to the Government
contains many wrong statements. The Law Minister had never suggested in
his letter that a retired Judge was to be appointed. Therefore, the statement
in the letter of the then Chief Justice that he agreed with the Law Minister
that a retired Judge is to be appointed is totally misconceived. Further, the
reasons indicated for taking a departure from the earlier practice of appointing B
sitting Judges also reveals some interesting factors. Only reason which can
be inferred from the letter is that the workload has increased and the paucity
in the number of Judges. The same was the position when the then Chief
Justice suggested the name of a sitting Judge on his own even before the
Government sought for views of the Chief Justice. On February 26, 2005, the c
Secretary to Government, Law Department, has noted in the note sheet that
a letter had been received from the Chief Justice recommendi11g the name of
a sitting Judge to be nominated as the Executive Chairman. This was considered
to be "in consultation" with the Chief Justice as required under Section 6(2)
of the Act. The situation was not different when the then Chief Justice made
the recommendation without awaiting a query from the Government. It D
.. obviously means that action of the then Chief Justice was not principle-
oriented but was person-oriented. This is what is the main grievance of the
writ petitioner. Surprisingly, even in the Jetter addressed to the Government,
the then Chief Justice had suggested the facilities to be provided to the Judge
concerned. This is not required as a part of the consultation process. Therefore, E
as rightly contended by the writ petitioner, there is ample scope for favouritism
in appointment of a retired Judge.

9. In some cases earlier a sitting Judge was functioning as the Chairman
of the State Legal Service Authority. We could not find any reason as to why
y a departure from the long standing practice of appointing a sitting Judge as F
the Chairman of the State Legal Service Authority was departed from.

10. Interestingly, in the affidavit of the State of West Bengal it has been

.. ......._
stated as follows:

" .... .I further submit that the sitting Judges of the High Curt are
heavily burdened with judicial work and hardly it would be possible
G
for them to afford sufficient time for implementing the legal aid
programme for the entire State. Secondly, if any sitting Judge of the
High Court is appointed Chairman of the State Legal Services Authority,
his post as Judge of High Court shall have to be kept vacant for his
H
106 SUPREME COURT REPORTS [2007] 5 S.C.R.

A return at any time and the litigant public will suffer for such vacant
post of Judge. On the contrary, if any additional post of Judge in the
High Court is created for such purpose with additional staff that will
involve huge financial liability on State exchequer without fruitful
purpose. Moreover, the sitting Judge may net like to mix with general
public who want to tak~ legal aid. I say that there are 19 Districts
B including Kolkatta District in West Bengal."

11. The stands are not only confusing but also without any basis.

12. Another disturbing feature is that some of the State Governments
have asked for panel of names to be given. Calling for such panel in essence
C results in substitution of objectivity with subjectivity. This is to be avoided.
Though in tenns of Section 6(2) retired Judge can be appointed, but that shall
have to be in exceptional circumstances. The advantage of having a sitting
Judge as the Chairman far outweigh the disadvantages, some of which have
been highlighted by learned counsel for the States where retired Judges are
D appointed. Therefore, normal rule is that a sitting Judge should be appointed
as the Chairman and only when unusual difficulties exist, a retired Judge may
be appointed. That has to be the exception and not the rule.
·'·
13. In some States the retired Judges have functioned for some time.
The concerned State Governments are directed to re-consider the matter with
E the consultation of the Chief Justice of the concerned State and do the
needful within a period of four months.

14. The writ petition is allowed with the above-said directions. The '
orig;nal records filed by the different States be returned by the Registry.

F N.J. Writ Petition allowed.