Judgment

Home » Landmarks » S.P. Gupta vs Union of India (Part-II)


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499. In Burmah Oil Co. Ltd. v. Bank of England 1980 AC 1090 the following observations were made by Lord Wilber-force:

It is, in my opinion, necessary for the proper functioning of the public service that the documents in Category A and Category B should be withheld from production. They are all documents falling within the class of documents relating to the formulation of Government policy, Such policy was decided at a very high level, involving as it did matters of major economic importance to the United Kingdom. The documents in question cannot properly be described as routine documents. Those in Category A are all documents passing at a very high level, including communications intended for the guidance and recording the views of the Prime Minister or recording discussions at a very high level.

…. …. …. ….

The basis for an immunity claim, then, having been laid, it is next necessary to consider whether there is any other element of public interest telling in favour of production. The interest of the proper and fair administration of justice falls under this description. It is hardly necessary to state that the mere fact that the documents are or may be ‘relevant’ to the issues, within the extended meaning of relevance in relation to discovery, is not material. The question of privilege or immunity only arises in relation to ‘relevant’ documents and itself depends on other considerations viz., whether production of these documents (admittedly relevant) is necessary for the due administration of justice.

…. …. …. ….

It may well be arguable whether, when one is faced with a claim for immunity from production on ‘public interest’ grounds, and when the relevant public interest is shown to be of a high, or the highest, level of importance, that fact is of itself conclusive, and nothing which relates to the interest in the administration of justice can prevail against it.

…. …. …. ….

A claim for public interest immunity having been made, on manifestly solid grounds, it is necessary for those who seek to overcome it to demonstrate the existence of a counteracting interest calling for disclosure of particular documents. When this is demonstrated, but only then, may the court proceed to a balancing process.

500. It was thus held that the documents should be produced for inspection by the House of Lords. As the said case was not one where without inspection of documents it was possible to decide whether the balance of interest lay for or against disclosure after inspecting the documents the majority of the Lords arrived at a finding of fact that none of the documents contained such, confidential matters as could form the basis of a plea of privilege. Lord Wilberforce, however, dissented and held that the Minister’s certificate would amount to public interest immunity, and the documents could not be inspected.

501. This case also, has absolutely no application to the facts of the present case because this Court after hearing the arguments of the parties on the issue of privilege by an. interim order held that the court was entitled to inspect the documents and after inspecting the documents I am clearly of the view that having regard to the magnitude of the matter, the heavy stakes involved, the disclosure would amount to denigration of not only the judiciary but also the other constitutional functionaries who have figured in the case result in the gravest possible injury to public interest and to the running of public services.

502. In the aforesaid case, Lord Edmund Davies classed the documents into three categories, which may be extracted thus:

Category A These consist of communications between, to and from ministers (including ministers’ personal secretaries acting on behalf of ministers) and minutes and briefs for ministers and memoranda of meetings attended by ministers. All such documents relate to the formulation of the policy of the government…” The minister thereafter sets out various aspects of government policy in relation to the financial difficulties of Burmah.

Category B These consist of communications between, to and from senior officials of the Department of Energy of the Treasury, and of the bank including memoranda of meetings of and discussions between such officials and drafts prepared by such officials (including drafts of minutes and briefs comprised in category A), all such communications and drafts relating to the formulation of one or more aspects of the policy described in category A,”

Category C These consist of memoranda of telephone conversations and meetings between senior representatives of major companies and other businessmen on the one hand and a minister or senior officials of government departments and of the bank on the other and memoranda of meetings of such officials and briefs for ministers and drafts of such briefs, all recording or otherwise referring to commercial or financial information communicated in confidence by such company representatives and businessmen.

After mentioning the categories, Lord Davies observed as follows:

There can be no doubt that the court has power to inspect the documents privately. This much clearly laid down in Conway v. Rimmer 1968 AC 910. I do not consider that existence of such power, in cases responsibly regarded by the court as doubtful, can be treated as itself detrimental to the public interest. Indeed, I am of opinion that it is calculated to promote the public interest, by adding to public confidence in the administration of justice.

503. It is true that the majority opinion was that the plea of privilege should be overruled but although the categories, mentioned above consisted of confidential documents they all related to purely commercial, transactions and did not contain any constitutional colour or any element of affairs of the State. The same cannot be said so far as the documents in the instant case are concerned. These documents are not only of great public importance but are directly concerned with the affairs of the State in that the Council of Ministers while giving advice to the President for not extending the term of Justice Kumar had expressly relied on these documents though it has not, been shown to our satisfaction that these documents, form part of the Memo. of Advice tendered to the President. In such a case, the documents would have been beyond any enquiry under Article 74(2), apart from the question of the application of Sections 123 and 124 of the Evidence Act

504. Another case relied upon by the petitioners was Neilson v. Laugharne (1961) 1 All ER 829. Lord Denning approached the question with the usual ingenuity and observed as follows:

This modern development shows that, on a question of discovery, the court can consider the competing public interests involved. The case is decided by the court folding the balance between the two sides. One of them is asserting that, in the interest of justice, the documents should be disclosed. The other is asserting that, in the public interest, they should not be disclosed, Confidentiality is often to be considered., So is the need for candour and frankness.

Once it is decided that the public interest is in favour of non-disclosure, the decision is regarded as a precedent for later situations of the same kind.

Lord Denning ultimately held that in his opinion the documents were privileged. It may be noted that the documents in respect of which privilege was sought were merely statements before the police. Thus, even though the documents were doubtless confidential, a possible view could be taken that the plea of privilege should not be allowed. In spite of these facts, the majority of the law Lords agreed with Lord. Denning and held that there was a real danger to public interest if disclosure was made. In this connection Lord Oliver observed thus:

Taking all these considerations into account, I think that there is a very real danger that the prospect of disclosure on discovery of material gathered in the course of such ah inquiry will inhibit the proper conduct of the inquiry and thus frustrate the purpose of the legislature in making statutory provision for it. In my Judgement, therefore, the public interest requires that these documents should be protected as a class, and I accordingly concur in the conclusion of Lord Denning M.R.I agree that the appeal, should be dismissed.

505. Thus, although this case makes a slight departure from the view taken by the earlier cases it has not favoured the extreme position which seems to have been taken by the petitioners on the plea of privilege and which has been clearly negatived by the decisions of bur court.

506. Reliance was also placed by Mr. Sorabjee on a book ‘Public Law (1980), by I.G. Eagles where at page 275 the author makes the following Observations regarding Cabinet papers:

If the reason, for excluding cabinet or related documents is to safeguard the proper functioning of the higher organs of the state, then that reason is wholly inappropriate where what is charged is the grossly improper functioning of these very organs. The interest of the wider community in getting to the bottom of such charges is so great that it should not be impeded by a mere rule of evidence. Not can the decision to admit or exclude be safely left to those who are themselves charged with misconduct; (nor for that matter can it be left to their political associates or even, their opponents).

507. With due respect to the learned author, the principles have been rather broadly stated and do not fit in either with the democratic set-up of our country or with the spirit of our Constitution. For instance, Cabinet decisions, however Wrong or proper they may be, are undoubtedly secret documents and if any such document forms part of the advice tendered to the President then there is a clear constitutional mandate by virtue of Article 74(2) preventing the court from embarking on any inquiry into these documents. Thus, the question of disclosure cannot arise in such cases and the observations of the author become wholly inapplicable to the situations contemplated by our Constitution and the statutory laws. In these circumstances therefore, I cannot accept the view of the author, extracted above.

508. It would thus be seen that even from English decisions, it is clear that the Court itself should prevent disclosure of. documents whose production will be contrary to public, interest even if no claim is made by a Minister or other high official on his behalf. This was held as we have pointed out, in Sankey’s case (21 Australian LR 505) (supra) as also in Conway’s case ((1968) AC 910) (supra) where Lord Reid has clearly stated that it is the duty of the Court to prevent disclosure of documents even without the intervention of a Minister, where serious injuries to the national interest is apparent. Thus both the leading cases of England and Australia have not accepted the liberal doctrine of candour expounded by the American authOrs. In the instant case, it is manifest that the Union of India has not taken the plea of privilege merely to hide the truth or to prevent the court from knowing the truth in fact, both the Attorney-General and the Solicitor-General had frankly conceded And voluntarily produced the documents before the court for inspection in order to judge whether the disclosure of the documents would injure the public interest. This shows the bona fide of the stand taken by the Union of India. As, however, my Brother Judges after inspection decided to disclose the documents, the Union of India gracefully accepted the decision. I might mention that this is not one of those cases where a litigant is trying to conceal a document which may destroy his case or scuttle his defence. This seems to be the cardinal principle behind the doctrine of candour adumbrated by the American decisions.

509. I have summarised the opinions of the English, American and Australian courts on the question of privilege. While applying the law to Indian conditions which are essentially different from those prevailing in England, America or Australia, two important factors have to be borne in mind–

(1) That so far as our country is concerned we have chosen to base it on the British pattern with some additions, alterations or innovations to suit our own local, social and economic conditions because our ways of living and thinking, our attitude towards life and its various phases and above all, the mode of governance of the country are very different from and have nothing in common with the United States of America. Whereas in America there is mass education, illiteracy is the common feature of the masses of our country. We are no doubt making fast progress but it will require quite sometime before we become as advanced as the United States of America.

Even though the recently decided English cases may have taken a much broader and a more liberal view, the founding fathers of our Constitution had before them the old view and this Court has consistently followed the English decisions so far as the question of privilege is concerned.

(2) While neither in England, Australia or America there is any codified law laying down the principles and the grounds on which privilege can be claimed, in India we have Sections 123 and 124 of the Evidence Act which govern the conditions under which a plea of privilege can be allowed or disallowed.

Another law which affects the question of privilege is Section 162 of the CrPC which has also to be read in conjunction with Sections 123 and 124 of the Evidence Act.

510. Apart from these two sections there is also a constitutional provision which is enshrined in Article 74(2) under which no enquiry can be made by any Court in respect of the advice tendered by the Council of Ministers to the President. In the instant case, the order impugned has been passed by the President on the advice of the Council of Ministers. Although it has been alleged in the note of arguments that the contents of the documents were part of the material on the basis of which advice was given to the President, it has not been shown to our satisfaction that the correspondence contained in the documents formed part of the actual Memo, of advise sent to the President. If such evidence was produced before us then the matter would have been put beyond controversy because apart from the question of privilege arising under Sections 123 and 124 of the Evidence Act, the enquiry of disclosure would be barred by the constitutional mandate contained in Article 74(2).

511. In view of these circumstances, therefore, before importing the doctrines or the liberal trend of modern cases across the seven seas, we cannot overlook the mandatory provisions of the Evidence Act and the CrPC. Furthermore, while in England and America the democratic system of Government has been existing for more than two or three centuries, our democracy is only three decades old, which is a very small period in the life of a nation and. we have yet to develop our law by a process of adaptation and accommodation, rejection or modification, or by a trial-and-error method. This Court while construing Sections 123 and 124 of the Evidence Act was fully alive to the conditions prevailing in our country and the manner in which the public services were run and the Central Government or the State Governments took important decisions. Any revolutionary decisions so as to expose high confidential matters to public gaze by following a policy of liberal disclosure of documents ignoring the provisions of Sections 123 and 124 of the Act would not only be detrimental to our progress but may cause serious obstruction in the practical running of day-to-day affairs of the Government or for that matter the governance of the country itself.

512. For these reasons, therefore, while I have referred to the foreign decisions I would like to confine my decision mainly to those English cases which apply to our present day conditions and to the principles laid down by our own courts in their leading judgments which have been discussed and analysed in this judgment. While I am prepared to take a liberal view having regard to the fact that we have by our recent decisions widened the horizon of Article 21 so far as the inspection of the documents by the Court is concerned, but if after inspection of the documents the Court is satisfied that the tests laid down by this Court in several cases are not fulfilled then the plea of privilege must be upheld.

513. Thus, after a full and complete analysis of the various factors indicated above, it is established beyond doubt that so far as this Court is concerned it has chosen to follow the principle of English law with suitable adjustments and modifications in determining the plea of privilege under Sections 123 and 124 of the Act. This is, as it should be, because as pointed by Kapoor J. in Sodhi Sukhdev Singh’s case (supra) that since the Evidence Act was enacted during the British rule and we have generally ad-opted the English system in procedural matters, we should not depart from the basic and essential principles of interpretation, as laid down by the English law. I, however, respectfully agree with Subba Rao, J. that while construing Sections 123 and 124 and applying the principles of English law, we must do so against the background of the Socialist State and the egalitarian society which is the goal of our Constitution instead of confining the contours of privilege in a strait-jacket; in suitable cases a liberal view can be taken by this Court without violating the express language or the general spirit of the statutory provisions of the Evidence Act. I might mention that so far no CASE has ever held that Sections 123 and 124 are unconstitutional and this could not be so because these provisions deal with matters relating to great public interest. Even in the course of arguments before us it has not been suggested that these sections are violative of any of the Articles of the Constitution. Mr. Garg appearing in Tarkunde’s case had hinted that the aforesaid sections should be interpreted in the light of Article 21 but he has not categorically contended that the aforesaid sections are violative of any of the provisions of the Constitution.

514. Another important circumstance that has to be taken into consideration is that even after more than three decades of our independence, the Parliament despite so many socio-economic changes all over the world has not thought it advisable or necessary to amend the provisions of the Evidence Act so as to liberalise or widen the scope of the policy of privilege contained in Sections 123 and 124 of the Act by incorporating the principles laid down in the recent English or American cases. This intrinsic circumstance demonstrably proves that the view taken by the Supreme Court over the years is correct and does not call for any amendment of the Evidence Act by the Parliament. On a parity of reasoning, the irresistible conclusion that follows and the natural presumption that arises is that our legislature did not intend to make a departure from the earlier English decisions either by incorporating or adapting the principles of Amercian law on the subject. I might even go to the extent of saying that it will not be unreasonable to presume that the Founding Fathers of the Constitution and the Parliament thereafter having been fully aware of the view taken by the American courts in recent decisions has affirmatively chosen to reject the liberal and somewhat dangerous doctrine of candour. For instance, as discussed above one of the American cases has gone to the extent of holding that even military secrets can be disclosed in suitable cases. Our courts have clearly held that so far as Defence secrets or good neighbourly relations with other countries are concerned, there is complete bar to the disclosure of these matters or documents relating to these matters which are clearly covered by Section 123 or Section 124 of the Act.

515. There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued. The high sounding concept of independence of judiciary or primacy of one or the other of the Constitutional functionaries or the mode of effective consultation are matters of academic interest in which our masses are least interested. On the other hand, they are mainly concerned with dangerous forces at work and evils reflected in economic-pressures, inflationary tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing, bread and butter, and above all the serious problem of unemployment,

516. It is only a sizeable section of the intellectuals consisting of the press and the lawyers who have made a prestigious issue of the independence of judiciary. I can fully understand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill-founded that proper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so far as administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence. They are least concerned with individual Judges or the mode or manner of their appointment. Carried away by the stormy and emotional debate of the lawyers appearing for the petitioners and their egotistic slogan that independence of judiciary was in danger, this Court ought not to have broken the age old solid and sacrosanct tradition of upholding the plea of privilege which caused serious injury to the public interest. But lo and behold! the result of the disclosure has revealed widespread dangers and ills, for anybody in the street without appreciating the niceties of law looks upon the judiciary as suspect. Did we disclose the documents to produce such disastrous results? It is difficult to construct an edifice but very easy to demolish the same. But, alas! we have demolished it and caused irreparable damage for which our future generation will never forgive us. Whether I was right in upholding the plea of privilege, or my Brothers in ordering disclosure of documents, only time will tell.

517. Coming to -the practical side of the dangerous consequences of disclosure which might highlight my view that after inspecting the documents, it was not in public interest to order disclosure of the contents of the documents, the following considerations have swayed with me:

(a) appointment of High Court judges are highly confidential matters containing frank and free legal views expressed by the CJ of the High Court, CJI and the Central Government represented by the Law Minister and the Council of Ministers. These authorities have expressed their views in the secret correspondence on the distinct assurance and belief that for the last two centuries such documents have always been treated as secret, confidential and privileged and until to-day no disclosure of such documents has ever been allowed by any Court. Thus, in my opinion, any disclosure of the contents of the documents would be extremely derogatory to the High constitutional position that these Constitutional functionaries enjoy and would, in the long run prove counter-productive and destroy the sacrosanct consultative process as envisaged by the Constitution.

(b) If disclosure is allowed, it will bring into disrepute the judicial institution itself and lead to a continual process, of washing of dirty linen and perpetual mudslinging by allowing the so called wronged persons to make allegations and counter-allegations against the Government and the CJ concerned as was sought to be done in this very case, It is true that even after the contents of the documents are disclosed, the petitioners cannot be allowed to travel beyond the material disclosed by the documents but even that material could be exploited and affect the secrecy of such high constitutional officers and raise a controversy which will ultimately lead to opening a pandora’s box which is neither in the interest of the judiciary nor even of the lawyers. I fail to see how in the long run the disclosure benefits the Judge. In the ultimate analysis such a course of action apart from involving the CJI and CJ, Delhi High Court and Law Minister into serious controversy would destroy the reputation of the judge himself howsoever loudly he might proclaim his innocence. Taking the case of the petitioner, Kumar, at the highest and assuming that the petitioner is reinstated and he ultimately gets the satisfaction of his right having been vindicated, can he deny that in view of the serious difference of opinion between the CJ, Delhi High Court under whom he had worked and the CJI, a sizeable section of the people might still believe that the integrity of the Judge was not beyond doubt which may have prompted the CJ under whom he worked not to recommend his case for extension. Even if this impression is carried by a small section of the people, it will be a great slur on the functioning of the Judge. My personal conception of a Judge is that he should be above all criticism and controversy; he should be blameless and spotless, full of virtues and free from Vices like a ‘diamond in the sky’ like ‘Caesor’s wife above reproach. It is in my opinion better not to be a Judge at all than to be a controversial Judge.

(c) It is not that for the first time that the term of an Additional Judge has not been extended or a Judge has been dropped. The various schedules given by the respondents show quite a few instances where Addl. Judges were sent back after their period was over without any protest or objection.

(d) Indeed, if a really conscientious judge would have been in the position of petitioner, Kumar, he would have silently walked out of the show in the larger interests of the great and sacrosanct institution which he was serving instead of insisting on disclosure and thereby drawing himself into a serious controversy to vindicate his supposed right. I have already pointed out that it is hot for the first time that the term of an Additional Judge has not been extended: in the past also Judges have been dropped and one of the schedules given by the Solicitor-General is full of such instances. Such Judges never raised any controversy regarding their not being reappointed and got reconciled themselves without any protest or objection perhaps in due deference to the maintenance of the purity of the great institution of justice.

I cannot help commending the conduct of Justice Ismail who actually resigned and chose to quit his office instead of pursuing the matter further in the larger interest of the purity of administration of justice. The life of a judge is that of a hermit and he must inculcate a spirit of self-sacrifice and should take his profession in this holy spirit.

(e) The subsequent events following the disclosure of the documents * which have been fully published by the press and other media clearly show that there has been a serious character assassination of a high constitutional functionary for merely expressing his opinion in a very frank and honest manner and that too behind his back. The contents of confidential notes and letters have been exploited for their personal ends by interested parties. Thus, the apprehension and danger which I had predicted from disclosure has come to be true and hence forward there would be hardly any Head of, a Department, who can function properly or effectively with the sword of damocles hanging over his head. No high authority would now venture to record adverse annual confidential reports on the conduct of his subordinates or express his honest opinion howsoever unsatisfactory the conduct of the subordinate may be.

There is yet another distressing feature of the disclosure of documents. It would appear that the GJ, Delhi High Court was castigated as being dishonest and prejudiced against Justice Kumar for having refused to recommend his extension or reappointment. The same is being openly said in the Press regarding the CJI in respect of his adverse comments on Mufti Bahauddin, Acting Chief Justice of J&K High Court.

While CJ. Delhi has given cogent reasons for not recommending the re-appointment of Justice Kumar in his proposal to the Law Minister (a copy of which was sent to the CJI) which was by a full and frank discussion between CJ. Delhi and CJI. there is nothing to show that the materials or the data on which the CJI formed his opinion against Just-ice Mufti Bahauddin and as he says in his proposal found some substance in the complaints yet all this was done when Justice Bahauddin was neither a party to the present proceedings, nor was he ever heard in his defence and yet he has been publicly condemned, thanks to the disclosure. However, in the instant case, we are not at all concerned with the case of Justice Mufti Bahauddin but I have given this instance to show that if disclosure of confidential documents are liberally allowed by throwing public interest to the winds, what dangerous consequences can follow which may injure innocent constitutional functionaries. In the case of Justice Kumar C.J. Delhi High Court and the CJI have not revealed the source of their information and in my opinion rightly because anyone who gave them the information must have done so in confidence and according to the correspondence, it appears that senior colleagues of the CJ, Delhi High Court and eminent lawyers had supplied the information to him and similar authorities had given some counter-information to the CJI,

518. Thus, such an awkward and embarrassing situation is bound to develop if disclosures are liberally made as a result of, which serious injury is caused to public interest. The most unfortunate part of the disclosure in this case is that persons who are not before the Court have been involved in serious legal and political controversy which has, in my opinion, caused serious damage to the high judicial institutions of the country, posing a very serious problem to the Central Government and the public services.

519. The Solicitor-General made a feeble attempt to argue before me that since I have dissented from the majority view and upheld the plea of privilege I should not deal with the contents of the documents in my judgment. This argument, which appears to me to be somewhat extraordinary, cannot be accepted because the decision of the majority amounts to the law laid down for the whole country under Article 141 of the Constitution and is as such binding on me as on others. As a result of the majority decision, the documents disclosed form part of the record and if I shut my eyes to these documents merely because I have dissented from the majority view, it would perilously amount to being subversive of judicial discipline. I have, however, carefully waded through the documents and I do not think that much can be made of the contents and recitals in the documents. These are my reasons for upholding the plea of privilege taken by the Union in the cases of Mr. Kumar and Mr. K.B.N. Singh.

520. A careful perusal of the letters written by the CJ, Delhi High Court to the Government as also to the CJI would reveal that the stand taken by CJ, Delhi has been consistent throughout. He has honestly and frankly taken the stand that in his view as the reputation of Justice Kumar was not above board and his performance was rather slow, he was not prepared to recommend his reappointment after the expiry of his term. He has disclosed in his letter the grounds for coming to this conclusion which were derived partly from knowledge which he got from senior lawyers or senior colleagues and partly from certain facts. After sending the letter he had a full discussion with the CJI on all the points which are contained in the first letter which the CJ, Delhi wrote to the Law Minister. The CJI, however, took the stand that on his inquiry made from the lawyers and Judges of the High Court, he had no reason to doubt the integrity or honesty of Justice Kumar. It is also admitted that the CJ, Delhi had no animus against Justice Kumar and there was no reason why he should have expressed his opinion refusing to recommend his reappointment, without any sufficient reasons or due to enmity. The only argument advanced against the CJ, Delhi was that he had sent a letter to the Law Minister in which he had disclosed some data and details and had requested him to keep them secret, and had also prayed that the letter may not be shown to anybody else as it was meant for him. The argument was that there is no evidence to show that the materials disclosed to the Law Minister were shown to the CJI. It is, however, not disputed that the CJ. Delhi wrote such a letter to the Law Minister after his discussion with the CJI and the possibility that he may have discussed all matters including the materials put in writing to the Law Minister with the CJI cannot be excluded.

521. At any rate, without going into further details as several constitutional functionaries were involved, two facts emerge:

(1) That CJ, Delhi who had undoubtedly a better chance of observing the performance and the functioning of Justice Kumar, was in a position to get first hand knowledge of his reputation, has honestly believed that Kumar’s reputation of integrity was doubtful. He has not revealed the sources from which he came to know about the reputation of Justice Kumar. The CJI, however, took a contrary view but he has also not disclosed the names of the lawyers or Judges who had given him a contrary version.

In my opinion both of them did not disclose the names because the Judges or the lawyers concerned must have given the information in confidence and they would have been seriously embarrassed if their names were disclosed.

(2) These views were put before the Central Government and it was open to the President to accept one view or the other. The President chose to accept the view taken by the CJ, Delhi more particularly because he was in a position to have first-hand information both regarding the reputation and working of the Additional Judge.

522. In these circumstances, it cannot be said that the action of the President was tainted by malice or that there was no effective consultation. This aspect of the matter has been elaborately dealt with by my Brothers Bhagwati, Desai and Venkataramiah, JJ with whom I am in general agreement

523. I might just state that even if the documents were not disclosed, the conclusion would have been the same because in the affidavits it was not disputed that the two CJs had taken a contrary view regarding the doubtful reputation of Justice Kumar, nor was it suggested that CJ, Delhi had any ill-will or animus against Kumar. The disclosure of the documents, however, unfortunately resulted in grave and serious consequences of far-reaching effect on the future of not only the judicial institutions but also almost all the Government departments.

524. While agreeing with Brothers Bhagwati, Desai and Venkataramiah, JJ. regarding the interpretation of Article 224, I would, however, express my short opinion on the subject. Although it is true that by fixing the strength of permanent and Additional Judges of each High Court, the Central Government appears to have created two parallel lines of recruitment so that the appointment of an Additional Judge was a sort of training ground for being appointed as a permanent Judge whenever a permanent vacancy arose. It has already been pointed out by Brother Venkataramiah J. that this procedure was against the very spirit and tenor of Article 224 which is extracted thus:

224. Appointment of additional and acting Judges.–(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be Additional Judges of the Court for such period not exceeding two years as he may specify.

(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.

(3) No person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of sixty-two years.

525. If properly read, this Article envisages certain conditions precedent before an appointment under Article 224 can be made and also prescribes the nature and the term of the Judge appointed. In the first place, it requires that an Additional Judge can be appointed only if–

(1) there is any temporary increase in the business of a High Court, for instance, where by virtue of some new temporary law passed, a spate of litigation crops up but that ends with the duration of the Act or with the completion of the temporary reforms, etc., contemplated by the statute. Such an appointment is a kind of an emergency appointment which is to last until the temporary increase or arrears are disposed of, (2) where by reasons of heavy arrears of work it becomes necessary to appoint an Additional Judge, the appointment is made under Article 224.

526. The Article, therefore, contemplates only a tenure appointment to meet a particular contingency and is not meant to be a permanent feature so as to form a training base for recruiting Judges from the training base to the permanent cadre. This point need not detain us any further in view of the statement made by Mr. Mridul on behalf of the Law Minister that it has now been decided as a matter of policy by the Government not to appoint Additional Judges for a period of less than one year in special cases and two years normally. If this is done in future, then the spirit of the Constitution would be amply fulfilled and the controversy would be set at rest.

527. A more important feature is that the nature of the appointment under Article 224 is a pure tenure appointment for a fixed period and once the period expires, there is no question of extension of that period or reappointment. In other words, once the time for which a Judge has been appointed expires, the appointment of the Judge ceases to exist. That being so, whenever a Judge is sought to be appointed afresh, the constitutional functionary will have to go back to Article 217 even if a Judge is to be appointed under Article 224 and the question of suitability would be the first criterion. As in the case of initial appointment under Article 217, so in the case of a fresh appointment after the period mentioned in Article 224 expires, there is no legal right to be appointed nor does non-appointment give rise to any legal or constitutional infirmity so as to be the subject of a judicial review. It is a different matter that if an Additional Judge is considered for a permanent appointment afresh, the fact that he has acquired some experience would undoubtedly be an important factor to be taken into consideration while judging the suitability of the candidate concerned. At the same time, the constitutional functionaries cannot shut their eyes to the facts which may have come to their knowledge either against the Additional Judge or in his favour.

528. Thus, the position is that even if an Additional Judge is not appointed afresh and somebody else is appointed, there is no question of judicial review nor is there any question of the non-appointment of an Additional Judge afresh casting any reflection or aspersion on the reputation or character of an Additional Judge because he was appointed only for a particular period and for a particular purpose and is not on probation. Both Brother Desai and Brother Venkataramiah, JJ. have stressed this aspect of the matter in their own way and I agree with their views.

529. While dealing with the facts of Justice Kumar’s case, Brother Venkataramiah, J. has observed that although there was full and effective consultation between the CJ, Delhi, CJI and the Law Minister, therefore the lion-appointment of Mr. Kumar is not vitiated by any constitutional infirmity. At one place, however, Brother Venkataramiah has observed as follows:

Perhaps it would have been acceptable if the case was that the Prime Minister was favourably disposed towards Shri S.N. Kumar but the Law Minister had tried to mislead her.

(Emphasis mine)

530. With due respect to my learned Brother I am unable to agree with these observations which cannot be spelt out from the correspondence between the constitutional functionaries mentioned above, In fact, a close and careful perusal of the correspondence between all the constitutional functionaries, (CJ, Delhi, CJI and the Law Minister) would clearly show that the role of the Law Minister has been very fair and just from start to finish. The Law Minister insisted on the materials Before taking a decision against Mr. Kumar. These materials were supplied to the Law Minister by the CJ. Delhi. He had also discussions with the CJI: Even thereafter the Law Minister wanted to plug all loopholes in order to satisfy himself fully before taking a final decision in the matter, and that is why he wrote to the CJ, Delhi to furnish a complete data and better particulars which was done by him (CJ, Delhi), through his letter D/- 7-5-81.

531. It is obvious that the CJ, Delhi expressed his desire that the full material which was supplied to the Law Minister may not be sent to the CJI but that was perhaps because the CJ, Delhi had oral discussions with the CJI in respect of all relevant material. The law Minister also took care to ignore the CBI reports against Mr. Kumar because he wanted to proceed purely on legal and relevant materials before him. This shows the objectivity and the fairness of his attitude in coming to a final decision. Merely because he had advised the Prime, Minister to accept the opinion of the Chief Justice of Delhi, it cannot be said that he tried to mislead the Prime Minister. In my opinion, to suggest even indirectly that the Law Minister attempt-ed to mislead the Prime Minister, in view of the circumstances mentioned above, would be to make a most uncharitable remark against him amounting, to inflicting an ‘unkind cut indeed’. My Brother Bhagwati, J. has demonstrably shown that there is not a shred of evidence nor any reasonable basis for holding that there was a conspiracy between CJ, Delhi and Law Minister to oust Mr. Kumar. The allegation of the alleged conspiracy is totally unfounded and smacks of absolute recklessness. Indeed if the Law Minister Wanted to drop Mr. Kumar without any further inquiry he could have used the I. B. Reports–that he completely ignored them, proves his honesty of purpose. Merely because while exercising a constitutional function the Law Minister preferred the opinion of CJ, Delhi to that of CJI, no motive could be imputed to him, particularly when we have rejected the doctrine of primacy of CJI, as dealt with by Desai. J. with whom I fully agree.

532. I entirely agree with the very clear and adroit exposition of the constitutional aspect of the Article 224 by. Brothers Bhagwati and Desai, JJ. as also with the most elaborate, careful and detailed analysis of Kumar’s case in the light of the correspondence disclosed. I also agree with the opinion expressed by Brother Venkataramiah, J. but would like to add a few lines to highlight some aspects of the reasons given by Brothers Bhagwati and: Venkataramiah, JJ. which seem to me to be either inconsistent with the stand taken by them or do not accord with my view. Hence, I find myself bound to express my short opinion on these matters only.

533. Brother Bhagwati, J. after carefully analysing the facts of Kumar’s case as spelt out from the correspondence disclosed and the affidavit filed by Mr. Kumar has returned a clear finding that the conduct of CJ, Delhi was throughout honest and bona fide and he had acted as a responsible and honest CJ. I fully agree with this conclusion but Brother Bhagwati, J. appears to have found fault with the CJ, Delhi for expressing his desire to the Law Minister to keep the contents of his letter dated 7-5-81 secret and not to place the same before the CJI. Brother Bhagwati, J, has himself pointed out that CJ, Delhi had given cogent reasons for requesting the Law Minister not to disclose the contents to CJI and yet in his concluding portion while not doubting the bona fide of the CJ, Delhi, he seems to suggest that he (CJ, Delhi) ought to have shown greater courage of conviction so as not to have been cowed down by the apprehension that CJI might feel offended and in this connection observed as follows:

We must of course, observe that in our opinion howsoever strong and cogent might be the three reasons given by him, the Chief Justice of Delhi should never have asked the Law Minister not to place his latter dated 7th May, 1981 before the Chief Justice of India… He should not have bothered whether by his action in putting the facts on record in the letter dated 7th May, 1981 the Chief Justice of India would be offended and his relations with the Chief Justice of India would be spoilt.

534. Perhaps in making these observations with great respect, Brother Bhagwati, J., did not fully appreciate the substantial and compelling reasons why CJ, Delhi had made a somewhat unusual though fully justifiable request to the Law Minister not to place the letter before the CJI. As the data and material supplied to the Law Minister in the letter dated 7-5-81 had already been supplied to the CJI or at any rate, orally discussed with him, it was not necessary for the Law Minister to have disclosed the contents of the said letter which would be more or less a surplusage and would have naturally embittered the relations between the two high constitutional functionaries (CJ, Delhi and CJI},

535. Secondly, if we put ourselves in the place of CJ, Delhi we would have done the same in the circumstances. Here was a Chief Justice who was only recently made permanent and was to continue as CJ for quite some time and so was the CJI., In these circumstances, it is natural and obvious that CJ, Delhi would not like to join issue with CJI at any stage or at every step which would create difficulties in the smooth running of the High Court,

536. Thirdly, since CJ, Delhi was frank, forthright and firm to stick to his stand despite pressures till the last, disclosure of contents to CJI was wholly unnecessary and, in my opinion, CJ, Delhi rightly thought that there was no use entering in an endless controversy and a consistent legal tug of war with CJI for whom not only he but every Judge has the greatest respect.

537. Finally CJ, Delhi at the time when ‘he made the request could hardly imagine or conceive that the majority of our Brother Judges would permit disclosure of the documents leading to a public debate in respect of high official secrets which for the last two centuries-had never been disclosed. CJ, Delhi may have thought that if the matter leaked out, it was likely to be exploited by Mr. Kumar and his friends which would bring his Court to serious disrepute.

538. I feel that in view of the conspectus of the circumstances mentioned above and those detailed by Brother Bhagwati, J., CJ, Delhi was fully justified in requesting the Law Minister not , to reveal the contents of his letter dated 7-5-81 and to let the matter rest where it was. It is true that occasions may arise when a Judge in the discharge of his judicial functions has sometimes to perform an unpleasant duty but where awkward situations can be avoided with tact and wisdom the exercise of power is most laudable and beyond criticism.

539. For these reasons, therefore, I am unable to agree with the observations made by Brother Bhagwati, J, on this aspect of the matter only,

540. As regards the documents pertaining to justice K.B.N. Singh’s case which have been disclosed I shall discuss them while dealing with Transferred Case No. 24 of 1981.

Transferred Case No. 24 of 1981:

541. We now propose to deal with the case of D.N. Pandey and others in which Justice K.B.N. Singh, Chief Justice of Patna High Court has now been transposed as petitioner No. 3. All the. connected petitions in respect of the transfer of Justice K.B.N. Singh from Patna to Madras High Court involve common points. The petitioner, Justice K.B.N. Singh was a practising Advocate of the Patna High Court and was appointed a Judge of the said High Court on September 15, 1966 and was made permanent Judge from March 21, 1968. Thereafter, he was appointed Acting Chief Justice of the Patna High Court for a short while and as permanent Chief Justice on July, 6, 1976. He was administered the oath of office on July 19, 1976. Since then, the petitioner continues to be the permanent CJ of Patna High Court.

542. By virtue of a notification dated January 19, 1981, the petitioner was informed that the President, after consultation with the CJI, was pleased to transfer him to Madras High Court as Chief Justice with effect from the date he assumes charge of that office. A similar notification was issued by which Justice M.M.K. Ismail, C.J. Madras High Court was transferred as CJ of the Kerala High Court but as Justice Ismail proceeded on leave and ultimately retired from service the petition which was filed against the order transferring him to Kerala no longer survives. Miss Lily Thomas who appeared on behalf of Justice Ismail, however, confined her arguments only to the question that the petitioner (Justice K.B.N. Singh) should not have been transferred to Madras.

543. If appears that after the notification, Mr. M.G. Ramachandran, Chief Minister of Tamil Nadu took great exception to the appointment of the petitioner as CJ, Madras. High Court mainly on the ground that he was not conversant with Tamil language and, therefore, he would not be able to function property in the Madras High Court. We are, however, not concerned with these matters at the pre-pent moment.

544. Coming now to the facts which are germane for the purpose of deciding these petitions, the same may be summarised thus. The petitioner was appointed acting Governor of Bihar from 31st January, 1979 to 31st September, 1979, The CJI, who is respondent No. 2 in T. C. 24/81 visited Patna in February, 1980, according to the petitioner, for inaugurating the International Rotary Conference, The petitioner met the CJI in Patna and accompanied him to Nalanda and Rajgir. It was alleged by the petitioner that during his visit to Bihar the Hon’ble CJI did not give him any inkling of his transfer to Madras or for that matter to any other place, It was for the first time on January 5, 1981 that he received a telephone call from the CJI informing him that Justice Ismail was being transferred to Kerala and the petitioner would have to go to Madras. He then asked the CJI why he had decided to send him to Madras to which the CJI replied that it was the Government’s policy that had necessitated his transfer from Patna to Madras. The petitioner states that he was quite upset and told the CJI that his mother who lives with him was seriously ill and bed-ridden and was not in a position to leave Patna without the risk of her life and also mentioned other circumstances and difficulties and requested, that his transfer may not be insisted upon. The CJI is alleged to have told him that he was making a note of these circumstances. Three-four days later the petitioner came to Delhi and called on the CJI and told him of his acute and insurmountable personal difficulties to which reference had been made by him during his telephonic talk with the CJI. The petitioner was with him (CJI) for about 10-15 minutes at his residence but he found the CJI absolutely non-committal in respect of his transfer. The petitioner informed the CJI that he might be given a chance to remove any wrong impression that may have been created in his mind. The CJI, however, did not put any question or material to the petitioner.

545. The petitioner alleges that his transfer was notified without his previous consent nor did he give his consent, nor was he even consulted in any manner about his transfer to Madras. The petitioner further submits that no reasons, grounds or material necessitating or justifying his transfer from Patna to Madras were even disclosed to him or discussed by the President or the Government of India or anyone acting on their behalf or even by the CJI. He also denies that the transfer was necessary in public interest. This matter is a question of law for the Courts to examine. His main grievance was that had he been given a chance to express his opinion he would have pointed out his compelling personal circumstances and difficulties, more particularly the advanced age of his mother who was more than 85 years and was bed-ridden for two years,

546. The petitioner took the plea that he was not conversant with Tamil language, which was the official language of the State of Tamil Nadu, and this would therefore be a serious impediment in his functioning as the Head of judiciary in that State. He further alleged that his transfer was made without any effective consultation between the Government of India and the CJI and that it was based on irrelevant and nonexistent factors which were never disclosed to him. Thereafter, he took some legal pleas regarding the validity of the transfer, which as pure questions of law we have already dealt with while dealing with other cases. Then, he laid great stress on the statement made by CJI at Jaipur on January 19, 1981 that the Judges who were recruited with the understanding that they would not be transferred to other States should not be asked after their appointment to go to other States and according to the petitioner the CJI said that in such transfers the problem of language, education of their children could not be brushed aside, The petitioner seems to suggest that by agreeing or sponsoring his transfer to Madras, the CJI completely overlooked the observations made by him in Jaipur,

547. Another technical objection taken by the petitioner was that the transfer order was bad because no notification had been issued by the President determining the compensatory allowance until a Parliamentary legislation was passed as required by the provisions of Article 222. He then made reference to the recommendations of various Chief Justices Conferences held before his appointment. A number of other pleas were taken by the petitioner, but Dr. Shinghvi appearing for him, in view of the delicate and sensitive questions that arose, very rightly decided to argue the case on the convergence rather than divergence of the issues raised by the petitioner in his petition or in his affidavits.

548. As a plea for disclosure of the documents in the nature of correspondence which led to the transfer of the petitioner from Patna to Madras was also prayed for, a counter-affidavit was filed by Shri T.N. Chaturvedi, Home Secretary opposing the disclosure and taking the plea of privilege under Sections 123 and 124 of the Evidence Act. The Court by a majority of 6:1, as in other cases, in this case also overruled the plea of privilege and directed disclosure of the documents concerning the correspondence but omitting the notes and some minutes which fell within the ambit of Article 74(2) of the Constitution. The Hon’ble CJI, who is respondent No. 2, filed his counter-affidavit on 29-9-81, as directed by us, where he denied or rebutted most of the allegations of fact made by the petitioner in his affidavit. The petitioner filed another rejoinder OB 16-10-81 to the counter-affidavit of the CJI.

549. So far as the CJI is concerned, he admitted the fact that he visited Patna in Feb., 1980 but denied that he had gone there only for the purpose of inaugurating the Rotary International Conference. He averred that he visited Patna in the exercise of his official duties particularly in order to meet the Judges and the members of the Bar and had informed the petitioner regarding his visit to Patna on 23-2-1980. According to the CJI, inauguration of the Rotary International Conference was merely as incidental matter which he did during his presence at Patna. He has also stated that even before his visit to Patna he had received a letter from the petitioner enclosing a list of some senior Advocates whom he would like to meet individually but the CJI asked him to add names of five more Advocates.

550. On reaching patna, the CJI met the members of the Bar individually on 24-2-81 and on the next day in the evening he met the members of the Advocates Association in the High Court premises, He also admitted his visits to Nalanda and Rajgir. He further states that during his visit to Patna he did not give the petitioner any inkling about his proposed transfer to Madras because in Feb., 1980 there was no proposal to transfer him anywhere. The proposal of his transfer matured almost one year after.

551. The CJI further states that he did have a talk over the telephone with the petitioner on 5-1-81 and apprised him of the likelihood of his being transferred to Madras and asked him if he had anything to say. The CJI denied that he merely said that the petitioner was being sent to Madras in view of the Government policy but added that apart from the Government policy he had expressly told him that it was proposed to transfer him to Madras because he was an experienced and senior Chief Justice The CJI admits that the petitioner had informed him that his mother was bedridden and not in a position to go to Madras but he did not tell him (CJI) about any other difficulty, The CJI further states that the petitioner had hinted that if his transfer was insisted upon he would prefer to resign. Thereupon, he (CJI) requested him not to act in haste and to give the matter a close thought, He also informed the petitioner that he was making a note of the difficulty expressed by him. He also requested him to come to Delhi and discuss the question of his transfer. The CJI further states that the petitioner met him in Delhi 3-4 days later and was with him for 10-15 minutes and acquainted him (CJI) of his acute and insurmountable personal difficulties in the event of his transfer to Madras. The CJI further admitted that the petitioner was at his residence on 8-1-81 at 7.30 p.m., and during their discussion the question of his mother’s advanced age and illness also came up which was the only personal difficulty stressed by him (petitioner). The CJI told him that he was unable to agree with him because there were other dependable persons in the family, including his brother S.B.N. Singh, who could look after his mother, The CJI also states that the petitioner gave him an impression that perhaps some complaints may have been made against him to the CJI which he would like to remove, on which the CJI assured him that he did not believe that his conduct was in any way blameworthy but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Other matters were also mentioned by the petitioner to the CJI which have no direct bearing on the Issue.

552. In para 5 of his counter-affidavit the CJI has averred that there was full and effective consultation between him and the President on the question of the transfer of the petitioner from Patna to Madras and that every relevant aspect of that question was discussed by him fully with the President both before and after he proposed the transfer, The other allegations made by the petitioner were denied. The CJI also stated that he was personally aware since Feb., 1980 that his (petitioner’s) mother was advanced in age and was not in a good state of health. Admitting the allegation of the petitioner regarding his speech at Jaipur, the CJI mentioned in his affidavit that he had given thoughtful consideration to the personal difficulty narrated by the petitioner during his meeting.

553. Lastly, the CJI mentioned that as the petitioner was one of the senior most High Court CJs, he could function efficiently even despite the language difficulty.

554. The petitioner filed a rejoinder affidavit on 16-10-81 (hereafter referred to as the ‘second affidavit’) where he reiterated the allegations made in his first affidavit and denied some of the facts mentioned by the CJI. In his second affidavit he stated that the CJI had said that it was the Government’s policy to effect transfers in batches of 2 or 3 Judges. This statement is a little inconsistent with his previous statement in his first affidavit where he had mentioned that he was informed by the CJI that it was the Government’s policy. In that affidavit he did not say about the transfer in batches of 2 or 3, which seems to have been added in the second affidavit.

554-A. This is a most difficult and delicate situation where two high constitutional functionaries are involved and have given affidavits and counter-affidavits, In a matter of such a serious magnitude, the Court has to make a very careful and cautious approach having regard to the respectability of the persons who have sworn the affidavits, We would, therefore, like to avoid unnecessary details and, as rightly contended by Dr. Singhvi, confine our attention only to the points of convergence without touching the issues of divergence. Before, however, we deal with the admitted facts which emerge from the affidavits concerned, it may be necessary to refer to the well settled law on the subject of effective consultation which is a necessary concomitant of a valid and constitutional order of transfer passed by the President.

555. Article 222 constitutes a clear mandate that the transfer of a Judge from one High Court to another can be made only in consultation with the CJI. As the connotation of the word ‘consultation’ has now been well-settled by a long course of decisions of this Court, it is not necessary for us to multiply authorities on this issue. We shall, therefore, refer only to those decisions which lay down complete and objective test for determining what constitutes effective consultation, in a particular case, To begin with, we shall start with Seth’s case which is the only decision directly in point and where the matter was discussed fully covering all shades and aspects of this important question. Before referring to that case a few introductory re-marks may be necessary,

556. We have already indicated above that on an interpretation of Article 222 the proposal for transfer of a Judge (which includes Chief Justice) from one High Court to another may emanate either from the President or from the CJI. Although according to the Memo, which was produced before us, the practice is that the proposal is to emanate from the President through the Law Minister but, as we have already pointed out that the Memo cannot override the provisions of Article 222 being only in the form of a guideline, there is nothing to prevent the proposal emanating from the CJI. In either case, however the process of effective consultation is to be gone through according to the principles laid down and directions given by this Court, In the instant case, the admitted position is that the proposal for transfer of the petitioner for the first time emanated from the CJI by virtue of his letter dated 7-12-80, At that time of the recommendation of the CJI was to transfer the petitioner to Rajasthan which was later changed and by a subsequent letter dated 20-12-80 the CJI proposed that the petitioner be transferred to Madras and Justice Ismail from Madras to Kerala. This is the proposal which is in dispute in the present case.

557. In Seth’s case this Court proceeded on the footing that the proposal had emanated from the President and laid down detailed guidelines and principles which should be followed in order to make consultation effective. It is obvious that where the proposal emanates from the CJI the same principles would apply though in the reverse process. In other words, what the President is required to do under Article 222 if the proposal emanates from him as to be done by the CJI if he is the author of the proposal of transfer. The present CJI in his majority judgment has considered the matter fully and exhaustively and his judgment contains the most brilliant and scientific exposition of the doctrine of consultation. While dwelling on the attributes of effective consultation, Chandrachud, J, (as he then was) observed as follows (at pp. 2346, 2347. 2348).

It casts an absolute obligation on the President to consult the Chief Justice of India before transferring a Judge from one High Court to another. The word “may” in Article 222(1) qualifies the last clause which refers to the transfer of a Judge and not the intervening clause which refers to consultation with the Chief Justice of India, The President may or may not transfer a Judge from one High Court to another. He is not compelled to do so But if he proposes to transfer a Judge, he must consult the Chief Justice of India before transferring the Judge. That is in the nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the President consults the Chief Justice of India.

xxx xxx xxx xxx But there can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter, of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1) therefore, means full and effective, not formal or unproductive consultation.

Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts.

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 to enable them to evolve a correct, or at least a satisfactory solution. 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 source and foundation of the final derision.

(Emphasis mine).

558. Similarly, Krishna Iyer, J. speaking for himself and one of us (Fazal Ali, J.) described the consultative process thus:

The consultation, in order to fulfil its normative function in Article 222(1), must be a real, substantial and effective consultation based on full and proper material placed before the Chief Justice by the Government. Before giving his opinion the Chief Justice of India would naturally take into consideration all relevant factors and may informally ascertain from the Judge concerned if he has any real personal difficulty or any humanitarian ground on which his transfer may not be directed. Such grounds may be of a wide range including his health or extreme family factOrs. It is not necessary for the Chief Justice to issue formal notice to the Judge concerned but it is sufficient — although it is not obligatory — if he ascertains these facts either from the Chief Justice of the High Court or from his own colleagues or through any other means which the Chief Justice thinks safe, fair and reasonable. Where a proposal of transfer of a Judge is made the Government must forward every possible material to the Chief Justice so that he is in a position to give an effective opinion.

559. Bhagwati, J. (one of us) agreed entirely with the observations extracted above.

560. In an earlier Constitution Bench decision of this Court in Chandramouleshwar Prasad v. Patna High Court while dealing with the intent and purpose of Article 233, the principles of which equally apply to consultation under Article 222, Mitter, J. observed thus at P. 375):

Consultation with the High Court under Article 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…. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits or their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter-proposal without anything more, cannot be said to have been issued after consultation.

(Emphasis mine)

561. This case was followed both by Chandrachud, J. and Krishna Iyer, J. and one of us (Fazal Ali J.) in Sheth’s case where it was held that the observations made in this case constitute the true meaning and content of consultation as envisaged by Article 222(1) of the Constitution.

562. In Chandra Mohan’s case AIR 1966 SC 1987 (supra) this Court made the following observations regarding the process and purport of consultation:

That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution wherever the Constitution intended to provide more than one consultant, it has said so: See Articles 124(2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so; see Article 222. Article 124(2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein.

563. Analysing the ratio of the decisions in Sheth’s case and Chandramouleshwar Prasad’s case (supra) the following necessary concomitants of an effective consultation may be stated:

(1) That the consultation contemplated by Article 222 must be full and effective and is an essential ingredient of the exercise of power under Article 222.

(2) That once when the President decides to transfer a Judge, he must consult the CJI before transfer; the consultation before transferring a Judge is, as it were, a condition precedent to the actual transfer of the Judge.

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

(4) The President must make the relevant data and the necessary facts available to the CJI so that he (CJI) may arrive at a proper conclusion. In case any facts are wanting the same should be supplied to the CJI and this is an imperative duty or obligation cast on the President who initiates the proposal.

(5) The fulfilment by the President of his constitutional obligation and performance of his duty by the CJI are parts of the same process and after this process is fully complied with the consultation becomes full and effective and not formal or unproductive.

(6) That sufficient opportunity should be given to the authorities concerned to express their views so as to tender advice as deliberation is the quintessence of consultation.

(7) After the data, facts or materials are placed before the consultee and the consultant, there should be a full and complete application of minds in respect of the subject to enable them to reach a satisfactory conclusion. In other words, the two minds must be able to confer and produce a mutual impact on the identical facts which would constitute both the source and the foundation of the final decision.

(8) The CJI owes a corresponding duty both to the President and to the Judge who is proposed to be transferred to consider every relevant fact before tendering his opinion to the President.

(9) Before giving his opinion the CJI must take into consideration all relevant facts and should informally ascertain from the Judge if he has any personal difficulty or any humanitarian ground on which his transfer is proposed to be made and having done so must forward the same to the President. (These principles were laid down in Sheth’s case) (10) Consultation or deliberation is not complete until the parties make their points of view known to the other or others and discuss and examine the relative merit of their views. If one party makes a proposal to the other who has a counter proposal which is not communicated to the proposer, the direction to give effect to the counter-proposal without anything more will not amount to consultation. This was held in Chandramouleshwar’s case (supra).

564. We shall now state the admitted facts which emerge from the two affidavits of the petitioner and the counter-affidavit of the CJI to show whether the tests mentioned above have been fully satisfied or not. It is clearly established both from the petitioner’s affidavit and the counter-affidavit of CJI that during his (CJI) visit to Patna there was absolutely no suggestion or proposal to transfer the petitioner from Patna to Madras. The petitioner categorically states this in para 8 of his first affidavit (filed on 16-9-81). This fact is endorsed and admitted by the CJI in para 2 (e) of his counter-affidavit where he says thus:

it is true that I did not tell him then that he was to be transferred from Patna. That was because in Feb., 1980 there was no proposal to transfer him. He was transferred nearly one year later.

565. Thus, the first fact on which there is no controversy or divergence is that during his visit to Patna in Feb., 1980 the CJI did not give any indication to the petitioner regarding his transfer to Madras as there was no such proposal.

566. A perusal of the two affidavits would clearly show that there is no averment either by the petitioner or by the CJI that they ever met at any other place between Feb., 1980 and January 5, 1981. It must, therefore, be taken to be established that after his visit in Feb., 1980 the first time CJI had a talk with the petitioner was only on 5-1-1981. In this connection, averments are to be found in para 8 of petitioner’s first affidavit and in para 2 (f) of CJI’s counter-affidavit where he states thus:

It is true, as stated by Shri K.B.N. Singh in paragraph 8 of his affidavit, that I conveyed to him on the evening of January 5, 1981 over the telephone that it was proposed to transfer Shri Justice M.M. Ismail to Kerala and that he, Shri K.B.N. Singh, may have to go to Madras.

567. Another conclusive fact which inevitably follows from the aforesaid two averments is that even when the CJI sent the proposal D/- 20-12-80 of the transfer of the petitioner from Patna to Madras and that of Justice Ismail from Madras to Kerala, there was neither any talk or discussion nor any consultation with the petitioner. We have highlighted this important fact because from the observations extracted above one of the essential ingredients emphasised by this Court and even by the CJI himself was that there should be a communication of ideas before the proposal of transfer emanates. We shall elaborate this aspect a little later.

568. According to the petitioner he was told by the CJI on telephone that he was to be sent to Madras in pursuance of a Government policy. The CJI in his counter-affidavit in para 2 (g) stated that he did not merely indicate Government policy but also stated that it was necessary to appoint an experienced and senior CJ in place of Justice Ismail. In the circumstances, therefore, we would prefer the statement of the CJI to that of the petitioner particularly in view of the fact that in his second affidavit the petitioner has introduced an additional fact to the effect that the CJI had told him that it was the Government policy to effect transfers in batches of two or three. This minor contradiction is, however, not of much value because the fact remains that the petitioner was sounded by the CJI for the first time on 5-1-81 over the telephone.

569. The petitioner states that he explained to the CJI that his mother was seriously ill and bed-ridden and was not in a position to be moved and added that if his transfer was insisted upon, he might be compelled to resign. This statement is to be found in para 8 of the petitioner’s first affidavit. This fact is admitted by the CJI in para 2 (h) of his counter-affidavit which runs thus:

It is true that Shri K.B.N. Singh told me over the telephone that his mother was bed-ridden and was not in a position to go with him to Madras.

570. The CJI however denies that the petitioner told him of any other personal circumstance by reasons of which he was unable to go to Madras. We will accept this statement of the CJI also in preference to the statement made by the petitioner. The CJI admits that the petitioner had indicated his intention to resign if his transfer was insisted upon but he cautioned him to consider the matter more thoroughly before taking a final decision. On this point also there does not appear to be any controversy as there is a large measure of agreement in the statements contained in the affidavits of the petitioner and the CJI.

571. We then come to the finale of the drama which is the most important factor to determine as to whether or not there was an effective consultation as contemplated by Article 222. Before however we deal with this aspect of the matter we might mention that in the present case the letter dated 7-12-1980 sent by the CJI to the Law Minister clearly shows that it was the CJI who had initiated the proposal unlike in Sheth’s case where the proposal was initiated by the President through the Law Minister. If this was the position then the formalities and the duties that the President had to comply were now to be observed by the CJI, that is to say, it was for the CJI to consult the Judge concerned, consider his difficulties and then come to a final conclusion. Further, it was also for the CJI to have placed the entire facts, data, difficulties and viewpoints mentioned to him by the petitioner, before the President. Even if the CJI was not impressed by the difficulties expressed by the petitioner the materials and data given to him either orally or in writing had to be communicated to the President because the possibility of the President taking a different view cannot be reasonably excluded.

572. According to the averments made by the petitioner in para 8 of his second affidavit, he was not with the CJI for a period of more than 15 minutes. He further denied that apart from his mother’s advanced age and illness no other facts were mentioned before the CJI. According to him, he had told the CJI that being the eldest son it was a sacred obligation to keep his mother with him and having regard to the close attachment with her, he could not leave her with any of his brothers or other members of the family which was divided and partitioned. It may be relevant to note that in para 9 of his first affidavit the petitioner merely stated that he told the CJI of his acute and insurmountable personal difficulties without detailing them. He also admits that he was with the CJI at his residence on 8-1-81 for 10-15 minutes. He further mentioned that the CJI might have received complaints against him and he wanted to remove the wrong impression created against him. Para 9 of his first affidavit which contains details of the discussions he had with the CJI, does not at all mention the further facts which the petitioner has mentioned in para 8 of his second affidavit about the sacred obligation his mother’s illness, inability of other members of her family to look after her. In view of this omission we would accept the affidavit of the CJI which is fully corroborated by what the petitioner himself stated in his first affidavit. Although we may not go to the extent of saying that the subsequent statement of the petitioner made in para 8 of his second affidavit was an afterthought but in the circumstances it is sufficient to state that we would prefer to rely on the affidavit of the CJI as the subsequent facts were not indicated in the first affidavit of the petitioner. On the other hand, the CJI in Para 3 of his counter-affidavit replying to the statement of the petitioner that he (CJI) may have received baseless complaints, averred that he tried his best to convince him (petitioner) that he did not believe this his (petitioner’s) conduct was blameworthy and left him free to explain any matter which according to him had created dissatisfaction about the working of the High Court. Thereupon the petitioner narrated to him that there were number of persons inspired by communal and other extraneous considerations who tried to influence him (petitioner) administratively or judicially. The CJI however assured him that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. These details, mentioned by the CJI, have not been contradicted or denied by the petitioner and we fully accept what the CJI had said in para 3 of his counter-affidavit.

573. As regards other matters, the CJI does say that other issues were also discussed on the evening of January 8, 1981 but they had no bearing on the matters in issue. In para. 4 of his counter-affidavit the CJI admitted the statement of the petitioner, made in para 10 of his first affidavit, that he did not convey his consent to the proposal of his transfer, but the CJI added that he was consulted about his transfer to Madras. The consultation referred to by the CJI is obviously to the telephonic talk on 5-1-81 and the personal meeting between them on the evening of 8-1-1981.

574. These are the points of convergence on which by and large there does not appear to be any serious controversy and even if there is any, we have preferred to rely on the affidavit of the CJI as in the normal course of business we must, so long as the law permits.

575. The most crucial averment by the CJI which forms the bulwark of the essential ingredient of effective consultation is to be found in para 5 of his counter-affidavit which runs thus:

I deny the statement in paragraph 13 of the affidavit of Shri K.B.N. Singh that his transfer to Madras was made without effective consultation between me and the Government of India. There was full and effective consultation between me and the President of India on the question of Shri K.B.N. Singh’s transfer from Patna to Madras as the Chief Justice of the Madras High Court. Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer…. Every relevant circumstance, including the personal difficulty mentioned by Shri K.B.N. Singh was considered by me carefully and objectively before coming to the conclusion that he should be transferred to Madras. I was personally aware since February 1980 that his mother was advanced in age and was not in a good state of health.

576. So far as the first part of the affidavit is concerned that is a pure question of law, viz., whether on the facts effective consultation was proved or not. The CJI categorically states that every relevant aspect of the question was discussed by him fully with the President both before and after he proposed the transfer. It may be noticed that the name of the petitioner figures in the first proposal sent by the CJI to the Law Minister on 7-12-80 wherein he had clearly recommended that the petitioner be transferred as CJ, Rajasthan High Court. This proposal was, therefore, not merely an information but a regular proposal by which the CJI had recommended Justice K.B.N. Singh to be transferred to Rajasthan. We have already pointed out that between February 1980 and January 5, 1981 there is no evidence at all, nor any allegation or averment either in the affidavits of the petitioner or of the CJI to indicate that he had either orally or in writing ascertain-ed the views of the petitioner when he (CJI) by his aforesaid proposal recommended the transfer of Justice K.B.N. Singh to Rajasthan as Chief Justice. It must, therefore, taken to be established that there was no discussion at all nor any consultation between them when for the first time the ball was set in motion through the proposal of recommendation sent by the CJI to the Law Minister on 7-12-80. Even so we may not attach much significance to this fact because this proposal ultimately fell through and was substituted by a later proposal sent on 20-12-80. In his letter dated 20-12-80 the CJI wrote to the Law Minister that in view of the fact that a vacancy would occur in the office of CJ, Madras High Court he proposed that Justice K.B.N. Singh be transferred as CJ, Madras High Court. This is the proposal which is in dispute in the present case. It is common ground that even between 7th and 20th December 1980, there was no talk or consultation between the petitioner and the CJI. The position is that until 5-1-81 the petitioner was not given any idea or inkling about his being transferred to Madras High Court. Admittedly, for the first time the petitioner was informed by the CJI over the telephone on 5-1-81. This was followed by a meeting and detailed discussion by the CJI with the petitioner at the former’s residence in Delhi on 8-1-81 at about 8.00 p. m.

577. The fact that before the proposal recommending the transfer of Justice K.B.N. Singh to Rajasthan or to Madras, there was no consultation between the CJI and the petitioner, conclusively proves that one of the first ingredients of the consultative process, viz., consultation by the CJI with the proposed transferee should always be held as a first step towards making the consultation constitutionally effective was not observed. This was held, as extracted above, by CJI in Seth’s case where he has gone to the extent of holding that if there is no such consultation before the transfer, then the transfer becomes unconstitutional. This, therefore, appears to be the first constitutional infirmity in the consultative process as contemplated by Article 222.

578. This now brings us to January 8, 1981 when there was a full discussion between the petitioner and the CJI. We shall accept the statement of the CJI made in his counter-affidavit, in toto that he had discussed the matter threadbare with the petitioner and considered his difficulties. This limb of the consultative process was no doubt fully complied with as required by the Constitution.

579. Then we come to the third aspect of the consultative process. According to the CJI he had met the President and discussed every aspect of the matter, disclosed to him by the petitioner. Unfortunately, the CJI does not disclose the exact constitutional authority with whom he had discussed these matters, although it would have been much better if he had done so and that would have put the entire matter beyond any controversy. On this point, Dr. Singhvi as also Mr. B.C. Ghosh appearing for one of the petitioners vehemently contended that as the CJI was making a statement in an affidavit before a court of law, there was no justification for him to use the word ‘President’ and he should have mentioned the name of the exact authority with whom he had discussed the matter, failing which this part of the affidavit should be rejected as being vague. Having regard to the very high position that the CJI occupies, his word is entitled to the greatest weight and respect, we would draw all presumptions within the bounds of law in favour of the CJI and presume that by using the word ‘President’, the CJI obviously tended the constitutional authority, who was being consulted generally before or after the proposals for transfers were made viz., the Law Minister. We will also go even to the extent of holding that perhaps he may have had some discussion with the Law Minister also. What facts he may have revealed and in what way he put forward the point of view of the petitioner we are not able to say, because the affidavit of the CJI is absolutely silent on this point. Giving however the widest possible connotation to the words used by the CJI, viz., ‘every relevant aspect of the question’, would include all the personal difficulties which were mentioned to him by the petitioner, we are yet laced with another serious difficulty. In Sath’s case the CJI has himself clearly held that deliberation is the quintessence of consultation. Thus, according to the CJI himself even if he had disclosed or placed all the materials before the Law Minister, he ought to have been given sufficient time for deliberation over the matters so as to be able to make up his mind, whether to agree or disagree with the CJI, and to advise the President accordingly. It may b” that the personal difficulties may not have weighed with the CJI but the possibility of the Law Minister being impressed by them cannot be excluded. But as things stood, we find that the Prima Minister had already signed the file relating to transfer on 9-1-81 and it can safely be presumed that the file must have been sent by the Law Minister to the Prime Minister either sometime in the morning of 9th or late at night on 8th. This would leave no time at all to the Law Minister or the Prime Minister to deliberate on the various personal issues raised by the petitioner in his discussion with the CJI. Indeed, if prior to sending the formal proposal recommending the transfer of the petitioner the CJI would have taken the precaution of ascertaining his views there would have been sufficient time for the Law Minister or the President to deliberate.

580. It was strongly urged by the petitioner that from the statement of the Law Minister produced by the Solicitor-General before us it would appear that no minutes were recorded and the CJI had only mentioned to the Law Minister about his proposal to transfer the petitioner. Thus, from these facts it should be inferred that there was no discussion between the CJI and the Law Minister about the personal difficulties of the petitioner. It is true that from the file produced before us no minutes seems to have been recorded about the discussion which the CJI had with the Law Minister either on the 8th night or before that but that by itself would not exclude oral discussions having taken place after the detailed talk the CJI had with the petitioner on the evening of 8th. This, therefore, does not advance the case of the petitioner any further.

581. Applying the ratio of Chandramouleshwar’s case (supra) to the facts of this case, the position may be stated thus–here the CJI made a proposal for transfer of the petitioner to Madras but this proposal was not communicated to the petitioner who may have had a counter-proposal in his mind which also was not communicated to the President who was the person who decided the matter finally.

582. Thus, even though we may not disbelieve every letter and every word contained in the counter-affidavit of CJI and give him the full benefit of all possible legal presumptions, we come to the inescapable conclusion that the constitutional requirements of an effective consultation have not been proved beyond reasonable doubt inasmuch as–

(1) the petitioner was not consulted before the formal proposal recommending him for transfer to Rajasthan and then to Madras, was sent to the Government.

(2) that there is no mention at all in any of the proposals dated 7-12-80 or 20-12-80 regarding any discussion having been held with the petitioner.

(3) that there is nothing to show that the President or the concerned constitutional authority had sufficient time to deliberate over the pros and cons of the transfer particularly in view of the difficulties placed by the petitioner.

(4) the case squarely falls within the ratio laid down in Chandramouleshwar’s case (supra) discussed above which had been approved by the CJI himself and Krishna Iyer J. and one of us (Fazal Ali J) in Seth’s case .

583. In view of the circumstances discussed above the consultative process as contemplated by Article 222 is clearly vitiated which renders the order impugned passed by the President constitutionally invalid.

584. We must hasten to add that we have taken the greatest possible care to see that no finding is given or observations made by us which may either directly or indirectly cast any kind of aspersion on the recitals in the counter-affidavit of the CJI nor is there any circumstance proved in this case which may amount to such an aspersion. As already observed by us we have accepted the affidavit of the CJI in toto giving the due respect that it deserves. We have decided this case purely on the constitutional infirmities present in the consultative process and that too on the basis of the observations made and the decision given by the CJI himself in Seth’s case.

585. The last point of law that was urged by the petitioner was that the transfer was constitutionally invalid because one of the essential conditions of Article 222 had not been fulfilled in this particular case. It was argued that Article 222(2), which is extracted below, requires a Presidential Order by which the transferee Judge would be entitled to such compensatory allowance as the President may by order fix:

222(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 compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.

586. It was contended that this mandatory provision of Article 222(2) has not been complied with. We, however, find absolutely no substance in this argument because while Article 222(2) does require that on transfer from one High Court to another, compensatory allowance may be paid; it does not state that the Presidential order should issue pari passu the order of transfer. Such an order could follow the transfer. Moreover, as the C. J. of Patna High Court who was transferred to Madras High Court petitioner never cared to join his new assignment and before he could do so the writ petitions were filed and proceedings were stayed, there was no occasion for the President to pass the order directing compensatory allowance to be paid to him until the validity of the transfer of the petitioner was finally adjudged by this Court. This is not a case where a Judge or a C. J. having been transferred had joined his new assignment and started working and still no order of compensatory allowance was made by the President.

587. Before finally closing is Chapter we might mention that another reason given by Brother Venkataramiah, J. for upholding the impugned Order was that under Section 114(e) of the Evidence Act there is a presumption that official acts must be deemed to have been actually done, this Court must presume that if there was any infirmity in the consultation the same must have been complied with. With great respect to our learned Brother, we are however unable to agree with this argument. The presumption applies only where there is no challenge to the constitutional validity of an official act Where an act is found to be per se unconstitutional, the question of raising a presumption does not arise because once it is held, as found in this case, that the consultation did not fulfil the constitutional requirements, the order impugned would become void ab initio and non est.

588. We are fortified in our view by a decision of this Court in Collector of Customs, Baroda v. Digvijaysinhji Spinning and Weaving Mills Ltd. . Where Subba Rao J. (as he then was) made the following observations (at p. 1553):

The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon, the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute.

589. An identical view was taken in an earlier case . In the instant case in view of our clear finding that the essential ingredients of effective consultation as require ed by Article 222 not being proved, the question of drawing a presumption under Section 114(e) of the Evidence Act does not arise.

590. For the reasons given above we hold that the Order of the President transferring the petitioner, Justice K.B.N. Singh from Patna to Madras is constitutionally invalid and we hereby quash the notification dated 19-1-81 passed by the President.

591. The fact that the Order of transfer in this particular case has been held to be invalid and quashed, will not preclude the Government from making fresh orders of transfers after formulating a general policy of transfers on the lines and the manner indicated by us so that every High Court has a Chief Justice from outside and at the initial stage one-third of the strength of the Judges is recruit-ed from outside the State,

592. Thus, the position is that while I have expressed my separate opinions on Article 222 (T. C. No. 22/81), the Circular and the Policy of Transfer, question of Privilege and Transferred Case No. 24/81 and have made some observations on other questions also but subject to the observations made I would entirely agree with brothers Bhagwati, Desai and Venkataramiah JJ. in respect of Articles 217 and 224, on Primacy with brother Desai, J. and regarding Kumar’s case (T. C. No. 20/81) and the question of locus with Brother Bhagwati J.

593. The result is that petitions arising out of transferred cases Nos. 19. 20, 21 and 22 of 1981 are accordingly dismissed. Writ petition No. 274 of 1981, Transferred Case Nos. 2 and 6 of 1981 are accordingly disposed of Special Leave Petition (Civil) No. 1509/81 has already been dismissed as withdrawn before the hearing closed.

594. Petitions arising out of Transferred Case No. 24/81 are allowed but without any order as to costs.

Tulzapurkar, J.

595. On March 18, 1981 Hon’ble Shri P. Shivshankar, Minister for Law, Justice and Company Affairs, Government of India addressed the following Circular letter to the (1) Governor of Punjab and (2) Chief Ministers (by name) (except North-Eastern States):

D. O. No. 66 /10/81-Jus Minister of Law, Justice & Company Affairs, India, New Delhi-110 001.

March 18, 1981 My dear It has repeatedly been suggested to Government over the years by several bodies and forums including the State Re-organisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be from outside the State in which that High Court is situated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction.

2. In this context, I would request yon to–

(a) obtain from all the Additional Judges working in the High Court of your State their consent to be appointed as Permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as Permanent Judges; and

(b) obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts.

3. While obtaining the consent and the preference of the persons mentioned in para 2 above, it may be made clear to them that the furnishing of the consent or the indication of a preference does not imply any commitment on the part of Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given.

4. I would be grateful if action is initial ed very early by you and the written consent and preferences of all Additional Judges as well as of persons recommended by you for initial appointment are sent to me within a fortnight of the receipt of this letter.

5. I am also sending a copy of this letter to the Chief Justice of your High Court.

With regards, Yours sincerely, Sd/-

(P. Shivshankar) It further appears that prior to as well as after the issuance of the aforesaid Circular letter by the Union Law Minister on March 18, 1981, in several High Courts, including High Courts of Allahabad, Bombay and Delhi, the President of India acting under Article 224 granted short-term extensions for three months, six months or a year to sitting Additional Judges whose initial terms were about to expire but since such short-term extensions became a frequent phenomenon, particularly after the issuance of the aforesaid Circular letter, it created great consternation in the legal and judicial circles in the country. These two actions of the Union Government, namely, the issuance of the Circular letter dated March 18, 1981 and the grant of short-term extensions led to legal action being taken challenging the same which is the subject matter of the instant adjudication.

596. Having regard to their High position as a constitutional functionary all the sitting Additional Judges in various High Courts, though agitated by these two actions of the Union Government understandably felt reluctant to adopt legal steps against the same (barring the exception of Mr. Justice S.N. Kumar who as a party-respondent to the writ petition filed in Delhi High Court has actively supported the challenge to these actions and has also challenged the further action of dropping him out-right that occurred during the pendency of the petition) but the legal profession which was vitally interested in the maintenance of an independent and fearless Judiciary — with its concomitant power of judicial review — a basic feature of our Constitution and also a necessary postulate for the legal profession, felt terribly disturbed and thought of taking action challenging the same and the sequel was the filing of four writ petitions one in Allahabad High Court, two in Delhi High Court and one in the Bombay High Court, all of which were transferred to this Court, being Transferred Case No. 19 of 1981 (Shri Gupta’s Writ Petition No. 4845/81 in the Allahabad High Court), Transferred Case No. 20 of 1981 (Shri Tarkunde’s Writ Petition No. 882/81 in Delhi High Court), Transferred Case No. 21 of 1981 (Shri Kalra’s Writ Petn. No. 636/81 in Delhi High Court) and Transferred Case No. 22 of 1981 (Shri Iqbal Chagla’s Writ Petition No. 527/81 in the Bombay High Court). Excepting the Transferred Case No. 21 of 1981 where only short-term extensions are challenged, in the other three cases both the actions have been challenged.

597. According to the petitioners both the aforesaid actions of the Union Government forming part of a scheme constitute a direct attack on the independence of the Judiciary, which is a basic feature of our Constitution, and being illegal and unconstitutional are liable to be and deserve to be quashed or struck down. As regards Circular letter it is pointed out that it is in two parts; (i) in relation to sitting Additional Judges in all the States of India (except North-Eastern States) it seeks to obtain their consent in substance to their transfer as Permanent Judges to States other than their own and (ii) in relation to the proposed appointees (either from the Bar or Services) for initial appointment (either as Additional or Permanent Judges) it seeks to obtain their consent for being appointed to any other High Court in the country (meaning other than their home-State High Court); and in this behalf it also seeks from them their choice by naming three High Courts in order of preference to which they would prefer to go; and this is being done with a view to implement the policy of having one-third of the Judges of a High Court, as far as possible, from outside the State in which that High Court is situated on grounds of furthering national integration and combat-ting narrow parochial tendencies, bred by caste, kinship and other local links and affiliations. According to the petitioners this Circular letter seeks to effect, in substance and reality, a mass transfer of sitting Additional Judges as also of the proposed appointees based on a policy decision unilaterally taken by the Law Minister/Union Government and as such violates the requirements of Article 222(1) of the Constitution as laid down by this Court in Sankalchand Sheth’s case, inasmuch as such mass transfers on alleged grounds of policy are outside its scope and further it reduces the efficacy of the consultation with the Chief Justice of India contemplated therein to a meaningless formality by presenting a transfer proposal to him as a fait accompli, the same being backed by the consent of the concerned Judge or the proposed appointee to his transfer. It is also contended that the Circular letter is illegal as being without authority of law. Thirdly, as far as the sitting Additional Judges are concerned, it is contended that inasmuch as para 3 of the Circular letter makes it clear that even if consent is given and preference is indicated there is no commitment on the part of the Government either to appoint them as Permanent Judges or accept their preference, the said letter contains, by implication, a threat to them that if they do not give their consent they will not be either continued as Additional Judges or confirmed as Permanent Judges; the said statement in para 3, by necessary implication, also contains a threat that the Government would watch their performance in matters to which the Government, Government Bodies and Corporations are parties before them and would appoint them as Permanent Judges only if they were found to toe the Government line and as such it constitutes gross interference with administration of justice and is subversive of judicial independence; moreover, the consent is sought to be obtained under threat, coercion and duress and also in advance and in abstract and the same would be no consent in law. As regards the proposed appointees it introduces an additional qualification for being appointed as Additional or Permanent Judge not warranted by the Constitution. Fourthly, it is contended that the said statement in para 3 of the Circular letter also shows that there was no justification for writing the said letter at all and the same was written mala fide for a collateral purpose, namely, to by-pass Article 222 and confront the Chief Justice of India with a fait accompli when the proposal to transfer such Judge would be forwarded to him; further to exercise the power of appointing Additional Judges not for the purpose for which that power has been conferred but for the purpose of carrying out the so-called “policy” of the Government is also mala fide in the sense that the power is being exercised for a collateral purpose foreign to the purpose indicated in Article 224. Fifthly, the petitioners have contended that the Circular letter, under which absolute power and discretion is claimed to the effect that there is no obligation on the part of the Union Government to continue the sitting Additional Judges after the expiry of their initial term notwithstanding pendency of arrears of work or to make them permanent as and when permanent vacancies become available and to appoint different persons for different periods as Additional Judges in the vacancies of sitting Additional Judges after their initial terms have expired, is a clear abuse of the power conferred by Article 224(1) of the Constitution, because the power being purposive is coupled with a duty to exercise the same when the conditions precedent mentioned in the provision exist and the Circular letter which claims such absolute power is violative of the provisions of Article 224; in any case the course proposed in the said Circular letter in exercise of such absolute power claimed thereunder is contrary to the established constitutional convention and practice (specified later) that has grown over the years in the matter of appointment of Additional Judges and confirming them as Permanent Judges and, therefore, bad in law inasmuch as Article 224(1) has been interpreted and worked having regard to the laid convention and practice. Sixthly, the petitioners have contended that the Circular letter is violative of Article 14 inasmuch as it makes invidious discrimination against those who would be refusing to furnish their consent as they will suffer a disadvantage, while those who would be furnishing their consent will be at an advantage and even within the class of those who would be furnishing their consent it gives to the Government unfettered and unguided power or discretion to pick and choose i.e. select some for being shifted to High Courts other than their home-State High Courts and to retain and appoint others in their home-State High Courts — which power can be exercised either by way of punishment or by way of favouritism; and in this behalf reliance is placed on the Law Minister’s statement made in Parliament in response to a Calling Attention Motion by some Hon’ble Members on 16th April, 1981 to the effect “it is not the intention of the Government to appoint all Additional Judges to outside Courts”. Without prejudice to these contentions, it is lastly contended by the petitioners that in the appointment of Additional Judges of one High Court as Permanent Judges of another High Court or in the appointments of the Members of the Bar practising in one High Court at Additional or Permanent Judges of another High Court pursuant to the consent obtained under the said Circular letter, the consultation with the Governor of that other State and particularly with the Chief Justice of that other High Court would be illusory and an empty formality and as such the said Circular letter is violative of the Article 217 of the Constitution. For these reasons the petitioners have prayed for the quashing of the said Circular letter as also of the consent, if any, obtained thereunder, as being illegal, unconstitutional and void and its withdrawal, non-use and non-implementation by the Government.

598. As regards short-term extensions for three months, six months or a year granted to sitting Additional Judges upon the expiry of their initial term, which have become a frequent phenomenon after the issuance of the Circular letter dated March 18, 1981, the petitioners have contended that such short-term extensions are directly subversive of the independence of Judiciary and not contemplated by the Constitution According to the petitioners the power to appoint an Additional Judge “for such period not exceeding two years as the President may specify” in Article 224(1) has invariably been exercised by appointing Additional Judges initially for a period of two years, which has come to be regarded as the ‘normal term’, that when the said period is about to expire if there is no vacancy of a Permanent Judge in that Court it has been the practice to continue such Judges for a further term of two years and if a permanent vacancy arises to confirm the seniormost among them as a Judge of that High Court. The petitioners have contended that such a constitutional convention and practice has grown over the years and the provisions of Article 224(1) have been worked in accordance with such convention and practice. It is further pointed out that when a member of the Bar is appointed as an Additional Judge of a High Court an undertaking is usually given by him to the Chief Justice that if and when a Permanent Judgeship of the Court is offered to him he will accept it but if he declines to do to he will not practice before that High Court or any Court or Tribunal subordinate to it; (at any rate, such an undertaking is obtained in the Bombay High Court); the postulate of such undertaking is that an Additional Judge appointed from the Bar should not be allowed to revert to the Bar and, far from being dropped, will be offered a permanent vacancy as and when it arises in that Court. In other words a member of the Bar who accepts the appointment of an Additional Judge has legitimate expectation that he will be confirmed as Permanent Judge of that High Court when a vacancy occurs and in the past he has been confirmed except in the rarest of cases. According to the petitioners the power claimed under Article 224(1) not to continue the Additional Judge, even if temporary increase in the Court’s business persists or pendency of arrears justifies such continuance, after the expiry of the initial term and not to make him permanent even if a vacancy of permanent post occurs and to appoint another person as Additional Judge by ignoring the legitimate expectancy of the sitting incumbent whose initial term has expired, apart from involving an unjustified departure from the well recognised and established practice, amounts to breach of faith with the concerned Judge and further to ask such Additional Judge who has given such undertaking to agree in advance to a transfer (or even to accept fresh appointment) to other High Courts as a Permanent Judge also involves similar breach of faith with that Judge; such departure and breach of faith amounts to a clear abuse of power and the purported exercise of the power in that manner would be illegal and void. So also the claim made by the Government that Article 224(1) only fixes the maximum period of two years at a time, that the Article does not limit the discretion of the Government in the matter of the period for which an Additional Judge can be appointed except in regard to the ceiling of two yean, and that the appointment can be for a shorter period and that period is not justiciable is untenable in law and clearly wrong because, apart from involving an unjustified departure from the well recognized and established practice, it introduces an element of insecurity of tenure having serious repercussions on the independence of Judiciary and also undermines people’s confidence and faith in it.

599. It may be stated that the petitioners have cited specific instances of Additional Judges having been granted short-term extensions for three months, six months or a year in Allahabad, Bombay and Delhi High Courts and have also cited instances of Additional Judges being dropped in the purported exercise of such absolute power claimed under Article 224(1). Grievance has specifically been made in respect of the individual cases of three Judges of the Delhi High Court, (a) Mr. Justice O.N. Vohra (as he then was), (b) Mr. Justice S.N. Kumar (as he then was) and (c) Mr. Justice S.B. Wad. It is pointed out that these three Judges were initially appointed with effect from 7-3-1979 as Additional Judges in the Delhi High Court for a term of two years but on the expiry of the said initial term each one of them was granted a short-term extension of three months with effect from 7-3-1981 and at the expiry of their said period of three months on 6-6-1981 the first two have been dropped outright and Mr. Justice Wad has been granted an extension for a further period of one year with effect from 7-6-1981. Such short-term extensions for three months granted to all the three after the expiry of their initial term of two years, as also the short-term extension of one year granted to Justice Wad with effect from 7-6-1981 have been challenged as being illegal and unconstitutional and the outright dropping of the first two Judges has been challenged also on the ground of mala fides both legal and factual in Transferred Case No. 20 of 1981; however, relief is claimed only in respect of the dropping of Mr. S.N. Kumar and not of Mr. O.N. Vohra.

600. In the context of their challenge to short-term extensions the petitioners have submitted that Article 216 of the Constitution casts a primary obligation upon the President mandatorily to provide adequate strength of Permanent Judges to cope with the normal business in every High Court so as to ensure its disposal within reasonable time and to review such strength from time to time so that arrears do not accumulate and justice to litigants is not unduly delayed, while the power to appoint Additional Judges under Article 224(1) (a provision substituted in its present form by the Constitution Seventh Amendment Act, 1956) and the exercise thereof are only dependent upon the fulfilment of either of the two conditions mentioned therein, namely, (a) temporary increase in the business of a High Court or (b) arrears of work therein; and it is only upon the fulfilment of either one or the other or both the conditions in a High Court that the President can appoint duly qualified persons to be Additional Judges of that Court for such period not exceeding two years as he may specify, but if the said conditions are not fulfilled and the objective facts unmistakably demonstrate that the increase of business is not of a temporary character but is a permanent increase every year or that the arrears have increased and accumulated to an appreciably disturbing lever with no reasonable prospects of substantially reducing the same over a period of years, the President cannot resort to Article 224(1) but has to increase the permanent strength by making permanent appointments under Article 217. In any case Additional Judges cannot be appointed while keeping permanent posts vacant as is hap-penning at present frequently. The petitioners have further submitted that in view of undisputed data of the regular increase in the normal business of almost all. High Courts and the mounting arrears therein — a reality being within the knowledge of the President — the decision to keep a large number of sitting Judges as Additional Judges would be arbitrary and unconstitutional and a clear ease exists for declaring them to be deemed to have become permanent or directing the President to make them permanent by appropriately increasing permanent strength in the concerned High Courts and this Court should pass appropriate orders in this behalf.

601. The contesting respondents (who are mainly the Union of India and the Union Law Minister) through Counter-Affidavits filed by Shri K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, have resisted the writ petitions on several grounds. In the first place it is Contended that the petitioners (barring Shri S.N. Kumar who as party-respondent in Transfer Case No. 20 of 1981 has supported the challenge and sought reliefs) who are legal practitioners have no direct interest in the subject-matter of the writ petitions and cannot be regarded as, the persons aggrieved by the impugned actions of the Government and therefore have no locus standi and as such the petitions are liable to be dismissed: Secondly, it is contended that though Shri S.N. Kumar could be regarded as a person aggrieved by the impugned actions of the Government, he being a sitting Additional Judge from whom consent under the Circular letter was sought and was granted a short-term extension, his tenure having come to an end by efflux of the period for which he was appointed he is no longer concerned with the impugned Circular letter nor with the short-term that bad been granted to him and after he has ceased to be a Judge of the Delhi High Court he does not have any vested or enforceable right against the President or the Union Government in the matter of either continuation us an Additional Judge or appointment as a Permanent Judge and, therefore, his challenge as a party-respondent to the governmental action is not maintainable; in other words, even on the assumption that the Government’s actions are not warranted by the constitutional provisions, the invalidity or unconstitutionally thereof does not give any corresponding right to him to sustain the petition; in any event the tenure fixed by the warrant of his appointment as an Additional Judge having expired Shri S.N. Kumar has no enforceable right either to continue as ah Additional Judge or to be appointed as permanent Judge inasmuch at the power to appoint a person a Judge of a High Court is discretionary with the President and such discretion cannot be controlled by judicial review by issuance of a mandamus and he is not entitled to any relief.

602. As regards the impugned Circular letter it is contended that it does not deal with transfer of sitting Additional Judges or of the proposed appointees from one High Court to another nor does it seek to obtain consent for such transfer but in relation to sitting Additional Judges it seeks to obtain their consent for being appointed as a Permanent Judges to another High Court and in relation to the proposed appointees it seeks to obtain their consent for their initial appointment (either as Additional or Permanent) to a High Court other than their home-State High Court and the action proposed to be taken thereunder is for purposes of Article 217 of the Constitution; it is the case of the contesting respondents that when an Additional Judge on the expiry of his initial term or extended term is appointed as a Permanent Judge it is a fresh appointment by warrant under Article 217 and there is no question of any transfer being involved in such a case and obviously in the case of a proposed appointee (either from the Bar or Services) when he is being initially appointed there is no question of any transfer in his base either; in other words, according to the contesting respondents Article 222(1) of the Constitution is not attracted at all and as such here is no question of the Circular letter violating the requirements of the said article, much less there being any intention on the part of the contesting respondents either to by-pass Article 222(1) or to reduce the efficacy of consultation of the Chief Justice of India contemplated therein in any manner. It is emphatically denied that any mass transfers or individual transfers based on any policy decision are being effected under the impugned Circular letter. It is denied that the Circular letter is intended to affect the independence of the judiciary in any manner or that the Circular letter contains any threat of the type suggested or at all to the sitting Additional Judges while seeking their consent. It is also denied that the consent that is sought to be obtained under the Circular letter is being obtained under threat, coercion or duress or that the same is in abstract and it is pointed out that for making fresh appointments of sitting Additional Judges, after the expiry of their term, to another High Court and for making initial appointments of the proposed appointees to a High Court other than their home-State High Court their consent would naturally be required under Article 217 and it is such consent that is being obtained from them under the Circular letter. It is further denied that the statement contained in paragraph 3 of the Circular letter shows that there is no justification for writing the said letter at all or that the same was written mala fide for collateral purposes as suggested or otherwise; it is pointed out that the legal and constitutional position even before the sending of the Circular letter was that there was no commitment on the part of the Government to appoint every Additional Judge as the Permanent Judge and the true purport of para 3 of the said letter is that the furnishing of consent will not change that position and will not now imply a commitment and it was necessary to make the legal and constitutional position clear lest a different impression was created as also to avoid any legal arguments based on the theory of promissory estoppel. According to the con-testing respondents it is for the purpose of implementing the policy of having one-third of the Judges of a High Court from outside that the Circular letter has been issued and it is a preliminary step in the direction of obtaining and collecting data and information from persons who would be willing to get appointed in other High Courts so that such information could be made available to the Chief Justice of India as also to the State authorities and the Chief Justices of the concerned High Courts for effective consultation as envisaged in Article 217 and as such the Circular letter is perfectly legal and within the authority of law. It is denied that the Circular letter confers unbridled or unguided power on the Executive to pick and choose certain Judges for being transferred or shifted to other High Courts; it is pointed out that such a contention is wholly mis-conceived for two reasons, namely, that the letter does not speak of transfers at all but appointments to other High Courts and secondly it cannot arm the Executive with any powers, for whatever powers the Executive has are derived from the provisions of the Constitution and that the Law Minister’s statement in the Parliament on 16th April, 1981 has to be understood in the context in which it was made. It is further denied that in appointing Additional Judges of one High Court as Permanent Judges of another High Court or in appointing Members of the Bar practising in one High Court as Additional or Permanent Judges of another High Court pursuant to the consent given under the Circular letter, the consultation with the Governor of that other State or with the Chief Justice of that other High Court would become illusory or an empty formality because the data and particulars of the person proposed to be appointed collected from other sources can and would be made available to the Governor of that other State as also to the Chief Justice of that other High Court and it is not the requirement of Article 217 that the constitutional functionaries mentioned therein should be aware of such data and particulars of their personal knowledge; in fact, even the Chief Justice of the home-State High Court, it is conceivable, may not have personal knowledge in that behalf and may have to collect the data and particulars from other sources. In other words, it is contended that if the data and particulars of the person proposed to be appointed is collected by a Chief Justice from other sources, his advice does not become illusory or an empty formality and as such the Circular letter can-not be said to be violative of Article 217.

603. As regards short-term extensions for three months, six months, or a year granted to sitting Additional Judges upon the expiry of the initial term and the other submissions made by the petitioners in regard to the President’s power under Articles 216, 217 and 224(1) the contesting respondents have relied upon the provisions of these Articles for their true and proper construction; according to them reading Articles 217(1) and 224(1) together the position in law is clear that no Additional Judge has any legal or constitutional right to be continued as an Additional Judge on the expiry of his initial or extended term or to be made a Permanent Judge even if a vacancy occurs in a permanent post in his High Court. Strictly speaking, the tenure of an Additional Judge is fixed by the warrant of his appointment and on the expiry of the period mentioned in the warrant he ceases to be a Judge of the High Court and in either extending him for a further term as an Additional Judge in the same High Court or in making him permanent in the vacancy in a permanent post, a fresh appointment is involved, and the consultative process envisaged in Article 217(1) is attracted; in other words he is in the same position as a proposed appointee for initial appointment and the same position obtains if it is intended to make him a Permanent Judge in some other High Court. It is further contended that the provisions of the concerned Articles being very clear and unambiguous no convention or practice that might have grown in the matter of appointment of Additional Judges and confirming them as Permanent Judges (which is denied) can alter or affect the interpretation of the said provisions. Even an undertaking of the type indicated by the petitioners if obtained from a member of the Bar while appointing him as an Additional Judge cannot affect the true meaning and construction of the concerned provisions. It is further contended that assuming (without admitting) that an Additional Judge of a High Court gives the kind of undertaking mentioned by the petitioners, particularly of the type that is said to be usually obtained from him in the Bombay High Court, no illegality takes places in asking him if he would agree to be appointed as a Permanent Judge in any other High Court, as he shall be so appointed only in pursuance of his consent. It is further contended that if on true construction of these two Articles it is clear that an Additional Judge has no vested legal or constitutional right to be continued or to become permanent then it must be open to the President to appoint different persons, who are fully qualified, to be Additional Judges during different periods for disposing of the arrears, though such appointments will have to be necessarily made in accordance with the constitutional requirements of Article 217. The contesting respondents have contended that the volume of work in a High Court is of relevance in deciding whether Additional Judges should be appointed and the same is of no relevance with regard to a particular person to be appointed. Regarding short-term extensions that were granted it is explained that they become necessary pending completion of inquiries into the complaints that had been received against the concerned Additional Judges and the constitutional functionaries desired to satisfy themselves in that behalf before taking a final view. As regards the individual cases of the three Judges of the Delhi High Court it is pointed out that so far as Justice Wad is concerned he has now been granted a long term of one year with effect from 7-6-1981 and he can have no grievance and at regards the out-right dropping of Shri O.N. Vohra and Shri S.N. Kumar it is denied that the same is illegal or unconstitutional or mala fide either in law or in fact; and it is pointed out that since Shri Vohra is not seeking any relief before the Court the action of dropping him need not be pronounced upon by this Court and so far as Shri S.N. Kumar is concerned, action being proper no relief can be granted to him. It is disputed that this Court can grant the relief by way of declaring the sitting Additional Judges to be deemed to have become permanent or by directing the President to make them permanent by appropriately increasing the permanent strength in the concerned High Courts.

604. As stated at the outset by these writ petitions filed under Article 226 of the Constitution the legality or constitutionality of the two actions of the Union Government, namely, the issuance of the Circular letter dated March 18, 1981 and the grant of short-term extensions to sitting Additional Judges in various High Courts, is being challenged and the first question raised by the contesting respondents relates to the locus standi of the petitioners, who are legal practitioners in Allahabad, Bombay and Delhi High Courts, to maintain their petitions seeking relief against these two impugned actions. In my view the question of locus standi of the petitioners in these cases has become academic inasmuch as admittedly in the writ petition filed by Shri Tarkunde in Delhi High Court (being Writ Petition No. 882/81) Mr. Justice S.N. Kumar (as he then was), impleaded as a party-respondent, has supported the challenge and sought reliefs in respect of these impugned action and as such the challenges made will have to be gone into and decided by this Court. In the case of Dwarkadas Srinivas v. Sholapur Spinning & Weaving Co. Ltd., , the constitutionality of the impugned Ordinance II of 1950 as well as of the Act XXVIII of 1950 which replaced it, whereunder the management of the Mills was taken over and run by the Directors appointed by the Central Government, was challenged by Shri Dwarkadas Srinivas (plaintiff), a preference share-holder of the Company and he also sought relief by quashing the demand made for calls in respect of unpaid share capital by the nominated Directors; a contention was raised about the locus standi of the plaintiff to maintain the suit on the ground that it was the Company who ought to have filed the suit as it was affected by the impugned Ordinance and the Act. This Court took the view that the contention was of no avail because the Company had been impleaded as a defendant to the suit and its old Directors had made an application to the Court supporting the case of the plaintiff on the ground that the Ordinance and the Act were void as they infringed the Company’s fundamental right under Article 31(2) of the Constitution. At page 714 (of SCR) : (at p. 132 of AIR) of the report Justice Mahajan (as he then was), who delivered the main judgment of the Court, observed thus:

I am further of the opinion that the question of the locus standi of the plaintiff to raise the plea that the Ordinance being void against the Company the Directors had no authority to make the call, is really of academic interest in this case because here the company has been impleaded as a defendant. Its old directors have made an application to this Court supporting the case of the plaintiff on the ground that the Ordinance is void as it infringes the Company’s fundamental right under Article 31(2).

In view of this legal position the learned Attorney-General for the Union of India made a statement at the Bar that he would not be pressing the contention relating to locus standi of the petitioners. However, Counsel for the Union Law Minister, one of the contesting respondents, argued the contention at great length, by referring to a large number of decided cases English, American and Indian as well as by relying on passages and extracts from treatises of well-known authors, on the ground that in the other three writ petitions none of the concerned sitting Additional Judges bad come forward to support the challenge and the maintainability of these writ petitions will have to be decided by this Court. Since the said contention has been fully and elaborately discussed and dealt with by my brother Bhagwati in his judgment, I propose to deal with it very briefly.

605. Counsel for the Union Law Minister has urged that the petitioners who are legal practitioners have no direct interest in the subject-matter of the writ petitions and cannot be regarded as ‘person aggrieved’ by the two impugned actions, which really affect, if at all, the sitting Additional Judges, who would be the aggrieved persons and it is not as if they are under any disability to approach the Court for redress, as is shown by the fact that one of them has done so and supported the challenge. It is contended that though as practising lawyers either in their individual capacity or as representing some of the Lawyers Associations the petitioners may be professionally interested in having a fearless and independent Judiciary for proper administration of justice that by itself is not sufficient to give them the ‘standing’ to prosecute the petitions for the reliefs sought, which really concern the sitting Additional Judges and not the lawyers. It is further submitted that even in ‘public interest litigations’, (usually called ‘public injury cases’) though a liberal approach is adopted by the Courts to reach all forms of injustice, the personal injury test is not ruled out but at times the test of ‘sufficient connection’ or ‘special interest’ is applied but in the instant case the petitioners neither qualitatively nor quantitatively have sufficient connection or special interest to prosecute the petitions, the result of which would not affect them either directly or even indirectly.

606. Since several decisions cited at the Bar on the question of locus standi show that the attitudes of the Courts in England, United States and this country have not been uniform but have varied from case to case any attempt at laying down a general principle for universal application would be futile. I would, however, prefer to confine my attention to a few decisions of this Court, which, according to me, throw sufficient light on this issue. It may be stated that in two decisions, namely; Adi P. Gandhi’s case and Dabholkar’s case , the question of locus standi was considered in the context of the interpretation of the expression “person aggrieved” occurring in Sections 37 and 38 of the Advocates Act of 1961. In the former case, in relation to certain disciplinary proceedings which bad ended in no action being taken against the advocate concerned, the question was whether the Advocate General of the State was an “aggrieved person” within the meaning of Section 37 of the Act for the purpose of preferring an appeal under that section and this Court by majority held that he was not and his appeal was incompetent while the minority took a contrary view. After this decision had been rendered, Sections 37 and 38 (which provided for an appeal to the Bar Council of India and an appeal to the Supreme Court respectively) of the Act were amended by expressly giving the right of appeal to the Advocate General and the Attorney General suggesting by implication a legislative approval and acceptance of the minority view in that case. In the latter case, the errant advocate having succeeded before the Bar Council of India, the State Bar Council preferred an appeal to this Court under Section 38 and the question arose whether the State Bar Council was a ‘person aggrieved’ within the meaning of Section 38 and a Bench of 7-Judges of this Court held upon a survey of the provisions of the Act and its scheme and purpose that the State Bar Council was a ‘person aggrieved’. Krishna Iyer, J. while delivering a concurring judgment quoted with approval Lord Denning’s observations in the Attorney General’s standing in the well-known case of the Attorney-General of the Gambia v. N’Jie (1961 AC 617), to the following effect:

…The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy-body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. Has the Attorney-General a sufficient interest for this purpose ? Their Lord-ships think that he has. The Attorney-General in a colony represents the Crown as the guardian of the public interest. It is his duty to bring before the Judge any misconduct of a barrister or solicitor which is of sufficient gravity to warrant disciplinary action.

Thereafter be proceeded to plead for a wider view being taken of locus standi in public interest litigations and derived support for his plea from certain observations of Professor S.A. de Smith and Professor H.W.R. Wade, which he quoted, and then went on to observe thus:

The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the Judges is misplaced because (sic) resort to Court to suppress public mischief is a tribute, to the justice system. In this very case, to grant an exclusionary wind-fall on the respondents is to cripple the Bar Council in its search for justice and insistence on standards.

607. In Municipal Council, Ratlam v. Vardhichand , this Court upheld the right of the residents of a certain locality in Ratlam town to adopt proceedings under Section 133 of the Criminal Procedure Code against the Municipal Council compelling it to provide certain basic amenities like sanitary facilities on the roads, public conveniences for slum dwellers who were using the road for that purpose and to abate nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench. While permitting such legal action ventilating public grievances Krishna Iyer, J. observed thus (at p. 1623 of AIR):

The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the center of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a path-finder in the field of people’s involvement in the just icing process, sans which as Prof. Sikes points out (Melvyn P. Sikes, Administration of Justice), the system may ‘crumble under the burden of its own insensitivity’. The key question we have to answer is whether by affirmative action a Court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. At issue is the coming of age of that branch of public law bearing on community actions and the Court’s power to force public bodies under public duties to implement specific plans in response to public grievances.

608. In the Fertilizer Corporation Kara-gar Union’s case, the question for consideration was whether the workers in a factory owned by Government could question the legality and/or validity of the sale of certain plants and equipment of the factory by the management and though the Court ultimately did not interfere because it did not find the sale to be unjust and unfair or mala fide, on the maintainability of the challenge the Court has made certain observations having a bearing on the aspect of the workers’ locus standi. Chief Justice Chandrachud at p. 65 (of SCR) : (at p. 350 of AIR) of the Report has observed thus:

But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental light is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective because the Parliamentary control of public enterprises is “diffuse and haphazard”. We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.

Since the question as regards ‘access to justice’, particularly under Article 226 of the Constitution, was dealt with by Krishna Iyer, J. at some length, Chief Justice Chandrachud did not consider it necessary to dwell upon that topic. On that aspect Krishna Iyer, J. has at p. 74 (of SCR) : (at p. 355 of AIR) of the Report made the following observations:

public interest litigation is part of the process of participate justice and ‘standing’ in Civil litigation of that pattern must have liberal reception at the judicial doorsteps. The floodgates argument has been nailed by the Australian Law Reforms Commission:

The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spector which haunts the legal literature, not the court room.’ (Prof. K.B. Scott : “Standing in the Supreme Court : A Functional Analysis” (1973) 86.) Again at p. 77 (of SCR) : (at p. 356 of AIR) of the Report this is what he has observed:

If a citizen is no more than a way-farer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the Court will not be ajar for him. But he belongs to an organization which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.

609. In the instant case the impugned Circular as well as the short-term extensions, according to the petitioners, are directly subversive of judicial independence, which is a basic feature of our Constitution, in the upholding of which not merely the sitting Additional Judges but also the lawyers practising in various High Courts are keenly interested. In fact, in the task of administration of justice the role of Judges and the role of lawyers are complementary to each other and the practising lawyers as a class are an integral part of just icing machinery rendering assistance to the Judges in the discharge of their function of reaching justice to the litigants appearing before the Courts: in other words, the practising lawyers, who are nothing short of partners in the task of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independent Judiciary to ensure fair and fearless justice to the litigants. That being the position, can it be said that the petitioners either in their individual capacity or as representing some of the Lawyers’ Associations (as is the case in the Bombay petition) are way-farers, interlopers, officious interveners or busy-bodies without any interest or concern of their own in the subject-matter ? In my view, the petitioners either in their individual capacity or representing Lawyers’ Association have not merely sufficient interest but special interest of their own in the subject-matter of the writ petitions and they cannot be told off at the gates and the petitions at their instance are clearly maintainable.

610. The next contention urged on behalf of the contesting respondents has been (sic) though Shri S.N. Kumar could be regarded (sic) a person aggrieved by the two impugned actions of the Government, he being a sitting Additional Judge from whom consent under the Circular letter was sought and was also granted a short-term extension, the issues raised in the case are not justiciable at his instance, much less at the instance of the petitioners. The contention is that Shri Kumar’s term having come to an end by efflux of period for which he was appointed be is no longer concerned with the impugned Circular-letter nor with the short-term extension that had been granted to him and after he has ceased to be a Judge of the Delhi High Court he does not have any vested or enforceable right against the President or the Union Government in the matter of cither continuation as an Additional Judge or appointment as a Permanent Judge and, therefore, his challenge to the governmental action is not maintainable. In this behalf Counsel contended that id either extending an Additional Judge for a further term or in making him a Permanent Judge in the vacancy of a permanent post, a fresh appointment is involved by issuance of a fresh warrant under Article 217(1) and the position of an Additional Judge on the expiry of his initial or extended term is exactly the same as that of a proposed candidate for initial appointment in that neither has any enforceable right to be considered for the post, much less to be appointed to it. Counsel pointed out that Article 217(1) confers power upon the President to appoint High Court Judges subject to the consultations mentioned therein but the President has a discretion in the matter which cannot be controlled by judicial review by issuance of a mandamus; in any event, non-appointment of a proposed candidate for initial recruitment or non-continuance of an Additional Judge on the expiry of his term does not give rise to any enforceable obligation against the President/Union Government and in favour of the person who is not appointed or not continued and, therefore, even a breach of the constitutional mandate, such as total lack of consultation or lack of full and effective consultation or consultation getting vitiated by mala fides, merely amounts to a case of complete non sequitur. In other words, Counsel contended that even on the assumption that the Government’s actions are not warranted by the constitutional provisions, the invalidity or unconstitutionality thereof does not give any corresponding right to Shri S.N. Kumar to sustain the petition.

611. The aforesaid contention of Counsel for the contesting respondents directly raises two questions : (i) whether the proposed appointees (either from the Bar or services), who are being recommended for their initial appointments, and the sitting Additional Judges, whose casts for their continued appointments either as Additional Judges or as Permanent Judges on the expiry of their initial term are to be decided, stand in the same class or category or is there any difference — a valid difference between the two and (ii) whether the non-appointment either at the stage of initial recruitment or at the stage of continuance furnishes any actionable wrong for issuance of a mandamus ? In the context of these questions Articles 217(1) and 224(1) will have to be considered. Article 217(1) runs that:

217 (1). Every Judge of a High Court shall be appointed by the President by warrant under this hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years.

Article 224 runs thus:

224.(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.

612. It cannot be disputed that Judges of the High Court occupy a high constitutional position and a special machinery is provided for their appointment. For obvious reasons, the post of a High Court Judge is not filled in by inviting applications through advertisements nor by holding test interviews; further, the minimum qualifications for appointment as a Judge (prescribed in Sub-article (2) of Article 217) would be possessed by numerous advocates and by a fair number of service Judges but even so, the special machinery for making appointments is indicated in Article 217(1), obviously designed to recruit persons of great ability, high character and unquestioned integrity to the Bench. All these factors go to show that at the stage of initial recruitment under Article 217(1) no one has a right to be appointed a Judge of the High Court nor the right to be considered for such appointment and, therefore, it does appear that a writ of mandamus at the instance of an aggrieved person would not lie. But at the same, time I am quite sure whether simply because a mandamus directing the President to reconsider the case of a non-appointee may not lie it would be correct to Say that in the case of non-appointment at the stage of initial recruitment the mandate of consultation becomes otiose, superficial or inconsequential, or that a positive breach thereof may not provide any relief whatever to the aggrieved person but since that question does not arise in the instant case I would rather leave it open for decision in an appropriate case and proceed on the basis that a mandamus for reconsideration of his case would not lie as the aggrieved person does not have the right to be considered. But question is whether the sitting Additional Judges, whose continuance either for an extended term or as Permanent Judges is to be determined on the expiry of their initial term, stand in the same position as that of proposed appointees for initial appointment?

613. It is true that, unlike a Permanent Judge whose tenure is fixed by reference to his age, the tenure of an Additional Judge when appointed under Article 224(1) is fixed by the warrant of his appointment and on the expiry of the period mentioned in the warrant he ceases to be a Judge of the High Court. It is also true that his continuance as an Additional Judge for any further term or as a Permanent Judge in the vacancy of a permanent post cannot be thought of unless for continuance as Additional Judge either one or the other or both the pre-conditions mentioned in Article 224(1) obtain in that High Court, and for continuance as a Permanent Judge the normal business of the High Court justifies the filling up of the vacancy in the permanent post. In other words pendency of work must justify such continuance temporary increase in the business of the High Court or arrears of work therein or both for, extension of his term and normal business (current institutions) for making him permanent. The question whether obtaining of the pre-conditions mentioned in Article 224(1) or the pendency of normal business is alone enough for such continuance or any other requirement suitability as adjudged during the consultation under Sub-article (1) of Article 217 is also necessary is a different aspect, which I propose to deal with later and need not be mixed up with the question under consideration at the moment. In other words, granted the pre-conditions in Article 224(1) and also the pendency of the normal business, the question is whether an Additional Judge whose term is about to expire has any enforceable right to be considered (even assuming that suitability is also required to be taken into account at this stage) for his continuance either as an Additional Judge for a further term or as a Permanent Judge if a vacancy in the permanent post is available ?

614. In order to deal, with the aforesaid question, Article 224(1), inserted in our Constitution by the 7th Amendment Act, 1956, will have to be considered in proper perspective having regard to the reasons and purposes for which arid the circumstances in which it came to be enacted. Prior to that, in the Government of India Act, 1915 the provision to appoint Additional Judges to any High Court ‘as may be required’ by the Governor-General in Council was contained in the proviso (i) to Section 101(2) while in the Government of India Act, 1935 the provision was to be found in Section 222(3) which was almost in similar terms as the present Article except that the power was conferred on the Governor-General acting in his discretion.’ When the Constitution was framed the provision (Draft Article 199) was deleted because of the strong plea, made against it by several Members of the Constituent Assembly including eminent authorities in this field like Sir Tej Bahadur Sapru, Shri K.M. Munshi and others, mainly on the ground that Members of the Bar recruited as Additional Judges will revert to the Bar on the expiry of their term and such, reversion to the Bar was manifestly dangerous to the fair administration of justice and opposed to public interest. In 1956 it was felt that the provision for recalling retired, High Court Judges to function on the Bench for short periods (loosely called Ad hoc Judges) was found to be neither adequate nor satisfactory and the same (original Article 224) was deleted and replaced by “a provision for appointment of Additional Judges to clear off arrears” (vide Statement of Objects and Reasons) and the present Article 224(1) came to be enacted. In other words the existence of a large volume of mounting arrears in several High Courts arid the necessity to clear off the same provided the basis for inserting the provision in the Constitution. That this is the rationale of the provision for appointment of Additional Judges has been clearly indicated by the Madras High Court in Kandasami Pillai v. Muthuvenkatachala (1917) 33 Mad LJ 787 : AIR 1918 Mad 263 wherein the context of the provision contained in the Government of India Act, 1915 that Court held that “the object of the proviso to Section 101(2) of the Government of India Act, 1915, clearly was to provide for occasions when the permanent strength of the High Court is unable to cope with the work of disposal, but the work is not sufficient to justify the appointment of another permanent Judge, by enabling additional Judges to be appointed from time to time for such fixed periods not exceeding two years as may be found necessary; the proviso must therefore be read as meaning that appointments may be made from time to time for such period, not exceeding two years, as may be required from time to time on each occasion when the power is exercised.” (vide Head Note in the Report). Thus, the very purpose and raison d’etre of Article 224(1) being the existence of arrears of work and clearance thereof, it stands to reason that sitting Additional Judges who have already been selected and appointed for the very purpose must be considered for continued appointments if the arrears obtain and go on mounting in their High Courts.

615. Secondly, on a comparison of Articles 216 and 224(1), it will appear clear that the former deals with the appointment of Permanent Judges to dispose of the normal business whereas the latter deals with appointment of Additional Judges whenever there is neither a temporary increase in the normal business of a High Court or arrears of work therein. It seems the work in a High Court has been classified into three’ categories, namely, (a) Normal business indicated by the current annual institutions (suits, writs and other proceedings), (b) Sudden temporary increase in business over and above the normal institutions, such as riling of hundreds of petitions challenging an enactment, like for instance Money Lenders Act, which will disappear when the validity or otherwise of the enactment is pronounced upon and (c) Arrears of work meaning the normal or ordinary work which the permanent strength has not been able to cope with and dispose of within a reasonable or stated period, say one or two years and has accumulated; and it is clear that Article 216 has to be resorted to for the first category of work and Article 224(1) for the other two categories. But it was not disputed before us that Article 224(1) appears to have been construed and worked by all concerned under some misapprehension in the sense that it has been resorted to even in situations where Article 216 ought to have been resorted; for, since the insertion of Article 224(1) in the Constitution it has been the invariable practice to appoint every Judge (whether from -the Bar or Services) initially as an Additional Judge for two years and then to make him permanent in due course, i. e. as and when a permanent vacancy arises in that High Court. Such a practice, though contrary to the clear intendment of the said two Articles, followed by the President or the Union Government has given rise to a legitimate expectancy on the part of the sitting Additional Judges (whether from the Bar or Services) to be considered for their continuance either for an extended term or for making them permanent on vacancies arising in permanent posts. In fact after following such practice over the years and thus putting all the Additional Judges into the belief that they will be confirmed in normal course it does not behave the appointing authority to say that the sitting Additional Judges have no right to be considered for their continuance either for an extended term or for making them permanent. Clearly, by reason of the said practice though followed under some misapprehension, they have such a right.

616. Thirdly, so far at the sitting Additional Judges recruited under Article 224(1) from the Members of the Bar are concerned, they would be having such legitimate expectancy and the right to be considered for continuance for two additional reasons, namely, (a) a well established constitutional convention or practice has grown over the years since after the insertion of the provision in the matter of appointment of such Additional Judges and confirming them as permanent Judges — the convention or practice being, that notwithstanding the words “for such period not exceeding two years as the President may specify” occurring in Article 224(1), the appointing authority has invariably exercised the power under that Article by appointing Additional Judges initially for a period of two years, which has come to be regarded as the ‘normal term’, that when the said period is about to expire if there is no vacancy of a permanent Judge in that Court to continue such Judges for a further term of two years and if a permanent vacancy arises to confirm the seniormost among them as a Judge of that High Court, and (b) the undertaking taken from them at the time of their initial appointment that “if and when a permanent Judgeship of that Court is offered to them they will accept it and not decline the same.” It may be stated that so far as the Bombay High Court is concerned further undertaking is obtained by the Chief Justice of that High Court from such Judges to the further effect that “if they decline to accept such permanent Judgeship though offered or in case they resign from the office of Additional Judge even before the question of their confirmation is taken up they will not practice in that High Court or in any Court or Tribunal subordinate to that High Court.” It may be pointed out that since 1956 barring very few or exceptional instances the aforesaid convention or practice has almost invariably been loll owed and the same has grown out of two weighty considerations : (i) that it is not in public interest to permit them to revert to the Bar, and (ii) not to loose or fritter away the experience and expertise gained by them in administering justice during their initial term, and as regards the undertaking mentioned-above the same became necessary because at the time of the insertion of Article 224(1) into the Constitution no provision was inserted imposing any ban or prohibition on practice by such Additional Judges after expiry of their term, as was thought of in 1949 when Draft Articles 199 (dealing with Additional Judges) and 196(b) (dealing with ban on their practice) were considered together and deleted together. It will be pertinent to mention here that during the Parliamentary debates over the relevant Bill which sought to introduce Article 224(1) into the Constitution great anxiety was shown by several Members to see to it that such Additional Judges, when recruited from the Bar were not permitted to revert to the profession on the expiry of their term and a categorical suggestion was put forward that when a Member of the Bar was appointed as an Additional Judge it must be done with a view to make him permanent in due course and if that was not possible an Additional Judgeship should not be offered to a Member of the Bar. In fact in Lok Sabha, Shri Tek Chand, M. P. from Ambala-Simla had opposed the recruitment of any Member of the Bar as an Additional Judge and suggested that such recruitment should be confined to District Judges, while in the Rajya Sabha Shri P.N. Sapru from Uttar Pradesh strongly pleaded that in appointing Additional Judges care should be taken to appoint Members of the Bar who were not likely to revert to the profession on the expiry of their term, that is to say “appoint a man whom you are going to appoint as a Permanent man”. These views expressed during the debate on the Bill have been referred to merely to bring out the genesis out of which the aforesaid convention or practice grew and the undertaking commenced to be taken from Members of the Bar. Even as late as on June 29, 1967 in a Note prepared by him Justice K.N. Wanchoo had also stated thus:

When a Member of the Bar is appointed an Additional Judge, it must be with a view to make him permanent in due course. If that is not possible, Additional Judgeship should not be offered to a Member of the Bar. I agree that an undertaking should be taken from Members of the Bar that they will accept a permanent Judgeship when offered to them in due course….(Note quoted in the Shah Commissioner’s Interim Report-I Para 7.23 at page 52) If the genesis of the aforesaid convention or practice as well as the undertaking is nothing but public interest in the sense that public interest is served ; (a) by not permitting them to revert to the Bar on the expiry of their term, and (b) by not losing or frittering away the experience or expertise gained by them in administering justice during their initial term, then it is these very aspects of public interest which form the compelling reasons to consider their cases for their continuance either by extending their term or making them permanent in preference to outsiders or freshers. It is not as if that these two aspects of public interest giving rise to the convention or practice and the undertaking are merely factors to be taken into account while deciding upon their continuance but along with the disability emanating from the undertaking these aspects confer upon them a legitimate expectancy and the enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for such continuance in that High Court.

617. There has been no answer from the side of the contesting respondents and in fact it was not disputed by Counsel on their behalf that the practice to appoint every Judge (whether from Bar or Services) initially as an Additional Judge for two years and then to make him permanent in due course without considering the question as to which one of the two Articles was attracted has been followed by the appointing authority and therefore, it is clear that on this ground alone it can be held that the sitting Additional Judges have an enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for their continuance either by extending their term or making them permanent until this practice is changed and a proper practice is introduced which can be done only after having made a complete and correct assessment about the requisite strengths of Permanent as well as Additional Judges for every High Court depending upon statistical data to be collected throwing light on ‘normal business,’ ‘temporary increase’ and ‘arrears of work’ after fixing rate of disposal per Judge per year and defining what should be termed as main cases, miscellaneous cases or interlocutory cases etc.

618. As regards the constitutional convention or practice and the undertaking which have been pressed into service in relation to Bar recruits as Additional Judges for basing their right to be considered for their continuance on the expiry of their initial term, the learned Attorney-General appearing for the Union of India raised a twofold contention. Regarding the former he urged that a constitutional convention or practice, howsoever wholesome, cannot affect, alter or control the plain meaning of Article 224(1) which according to him gives absolute power and complete discretion to the President in the matter of continuance of sitting Additional Judges on the expiry of their initial term, the pendency of arrears being relevant only for deciding whether or not Additional Judges should be appointed and not relevant with regard to a particular person to be appointed. As regards the undertaking he pointed out that the usual undertaking obtained from a Member of the Bar in all High Courts — and for that matter even the additional undertaking that is being obtained in the Bombay High Court if properly read will show that it merely creates a binding obligation on the concerned Member of the Bar but does not create any obligation or commitment on the part of the appointing authority to make the offer of permanent judgeship to him. It is difficult to accept either of these contentions of the learned Attorney General. It was not disputed before us that constitutional conventions and practices have importance under unwritten as well as written Constitutions and the position that conventions have a role to play in interpreting Articles of a Constitution is clear from several decided cases. In U.N.R. Rao v. Smt. Indira Gandhi Chief Justice Sikri observed thus : “It was said that we must interpret Article 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an Article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the convention prevalent at the time the Constitution was framed.” In State of Rajasthan v. Union of India also the importance of a constitutional convention or practice by way of crystallizing the otherwise vague and loose content of a power to be found in certain article has been emphasized. In the State of West Bengal v. Nripendra Nath Bagchi the entire interpretation of the concept of “vesting of control” over District Courts and Courts subordinate thereto in the High Court was animated by conventions and practices having regard to the history, object and purpose that lay behind the group of relevant articles, the principal purpose being, the securing of the independence of the subordinate judiciary. It is true that no constitutional convention or, practice can affect, alter or control the operation of any Article if its meaning is quite plain and clear but here Article 224(1) merely provides for situations when Additional Judges from duly qualified persons could be appointed to a High Court and at the highest reading the Article with Section 14 of the General Clauses Act it can be said that the power conferred by that Article may be exercised from time to time as occasion requires but on the question as to whether when the occasion arises to make appointment on expiry of the term of a sitting Additional Judge whether he should be continued or a fresher or outsider could be appointed by ignoring the erstwhile incumbent even when arrears continue to obtain in that High Court the Article is silent and not at all clear and hence the principle invoked by the learned Attorney General will not apply. On the other hand, it will be proper to invoke in such a situation the other well settled principle that in construing a constitutional provision the implications which arise from the structure of the Constitution itself or from its scheme may legitimately be made and looking at Article 224(1) from this angle a wholesome constitutional convention or practice that has grown because of such implications will have to be borne in mind especially when it serves to safeguard one of the basic features which is the cardinal faith underlying our Constitution, namely, independence of the judiciary. In other words a limitation on the otherwise absolute power and discretion contained in Article 224(1) is required to be read into it because of the clear implication arising from the said cardinal faith which forms a fundamental pillar supporting the basic structure of the Constitution, as otherwise the exercise of the power in the absolute manner as suggest-ed will be destructive of the same. That it is not sound approach to embark upon ‘a strict literal reach’ of any constitutional provision in order to determine its true ambit and effect is strikingly illustrated in the case of Article 368 which came up for consideration before this Court in Kesavananda Bharti’s case where this Court held that the basic or essential features of the Constitution do act as fetters or limitations on the otherwise vide amending power contained in that Article. In Australia limitations on the law-making powers of the Parliament of the Federal Common-wealth over the States were read into the concerned provisions of the Constitution because of implications arising from the very Federal nature of the Constitution : (vide The Lord Mayor Councillors and Citizens of the City of Melbourne v. The Common Wealth (1947) 74 CLR 31 and the State of Victoria v. Commonwealth of Australia 122 CLR 353. As regards the undertakings of the types mentioned above, it is true that strictly and legally speaking these undertakings only create a binding obligation on the concerned Member of the Bar and not on the appointing authority but it cannot be forgotten that when such undertakings were thought of, the postulate underlying the same was that there was no question of the appointing authority not making the offer of permanent judgeship to the concerned Member of the Bar but that such an offer would be made and upon the same being made the sitting Additional Judge recruited from the Bar should not decline to accept it and revert to the Bar. I am therefore clearly of the view that the aforesaid convention or practice and the undertaking serve the cause of public interest in two respects as indicated above and those two aspects of public interest confer upon these sitting Additional Judges recruited from the Bar a legitimate expectancy and the enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for continuance in that High Court either by way of extending their term or making them permanent in preference to freshers or outsiders and it is impossible to construe Article 224(1) as conferring upon the appointing authority absolute power and complete discretion in the matter of appointment of Additional Judges to a High Court as suggested and the suggested construction has to be rejected. In view of the above discussion it is clear that there is a valid classification between proposed appointees for initial recruitment and the sitting Additional Judges whose cases for their continuance after the expiry of their initial term are to be decided and the two are not in the (same position.

619. The next question hotly debated at the Bar has been whether while exercising the power under Article 224(1) of the Constitution at the time of determining whether the sitting Additional Judges should be continued either by way of extending their term or by way of making them permanent it is open to the President (Appointing Authority) to resort to the consultative process under Article 217(1) on she aspect of suitability again or the exercise of the power should be strictly governed by the consideration as to whether the preconditions mentioned in Article 224(1) obtain in the concerned High Court and pendency of work justifies the filling up of the permanent vacancies or not? Counsel for the petitioners have contended that while deciding upon the continuance of the sitting Additional Judges of a High Court, who have already been selected and appointed as such, the consultative process mentioned in Article 217(1) is not attracted for the purpose of considering suitability again, the same having been gone through once and for all at the stage of their initial recruitment and the appointing authority has merely to see whether one or the other or both the pre-conditions obtain or not and on being satisfied about their existence it must continue the sitting Additional Judges for a further term and if vacancies in the permanent posts are available to make them permanent in that High Court on being satisfied that pendency of normal business justifies the same. In support of this contention reliance has been placed on the fact that for all purposes the sitting Additional Judges of a High Court are in no way different from its permanent Judges as regards (a) qualification for the appointment; (b) salary and other service conditions; (c) criteria for their selection; (d) their position, jurisdiction, powers and privileges; (e) oath of office to be taken by them and (f) the grounds and procedure for their removal and it has been pointed out that Additional Judges are not on probation and cannot be regarded or dealt with as probationers. Principally, the bringing in of the consultative process under Article 217(1) on the point of suitability again at the stage of deciding upon their continuance is objected to on three grounds : (a) it amounts to making their continuance dependent upon the evaluation of their capacity, character, integrity and fitness as emerging from their work, performance and behaviour during their initial term and runs counter to the well-settled position that they are not on probation, (b) if in that process they are dropped because of suspected misbehaviour or reported lack of integrity, it would, in substance and reality, mean their removal merely on the basis of reports, rumours and gossip jeopardising their security and independence without resorting to the regular process of removal laid down in Article 124(4) and (5) read with Article 218 and the Judges (Inquiry) Act No. 51 of 1961, and (c) it is bound to affect the quality or character of justice administered by them during their initial term or at any rate towards the end of their term because human nature being what it is their work, performance and behaviour will be guided by the anxiety to keep themselves on the right side of the Chief Justice of the High Court, the Chief Justice of India and the appointing authority and every litigant will be entitled to complain that as against the State he has been denied equal protection of the laws and equality before law; in other words, violation of Articles 14 and 21 is involved and in this behalf reliance has been placed on Krishna Gopal v. P.C. Sethi and In Re The Special Courts Bill, 1978, .

620. On the other hand Counsel for the contesting respondents have urged that since in either granting an extension to these Additional Judges on the expiry of their initial term or in making them permanent a fresh appointment is involved the consultative process covering suitability under Article 217(1) is clearly attracted; even otherwise, going through the consultative process at this stage is both necessary and desirable inasmuch as an erroneous appointment of an unsuitable person produces irreparable damage to the faith of the community in the administration of justice Causing serious injury to public interest though failure to appoint a deserving person is not likely to inflict such irreparable injury and therefore it is but proper that at the time of their reappointment these sitting Additional Judges should pass the test of suitability (i. e. capacity, character, integrity and fitness) under Article 217(1) and it is unthinkable that if all the constitutional consulting functionaries are of the agreed view and the appointing authority shares the same view that by reason of what has happened in the meantime as erstwhile Additional Judge is no longer fit to be appointed he should nonetheless be appointed. Counsel for the contesting respondents refuted each one of the grounds urged by the petitioners in support of their objection to bringing in the consultative process inclusive of suitability again at the stage of reappointment of the sitting Additional Stages. Regarding the aspect of probation, Counsel accepted the position that Additional Judges are not and cannot be said to be on probation but according to him what is meant by that is that, unlike a probationer who is liable to be removed during his probationary period if he is found unfit or unsuitable and who is confirmed only upon satisfactory completion of the probationary period, the sitting Additional Judges, not being on probation, have an indefeasible tenure though for short periods fixed in their warrants of appointment and during the fixed tenure they can be removed only by following their regular process laid down in the Constitution and Judges (Inquiry) Act, 1968; any further appointment is always the result of a fresh consideration and fresh consultation with the consulting functionaries mentioned in Article 217(1). To suggest that they should be re-appointed as a ‘matter of course, if the pre-conditions of Article 224(1) subsist or pendency of work justifies their confirmation and then take steps for their removal under Article 124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968 would be manifestly unsound, if not absurd. Counsel disputed that if as a result of the consultative process undertaken they are dropped it amounts to their removal because, according to him, it becomes a case of non-appointment after their initial term has expired. Counsel strenuously disputed that bringing in the process of consultation under Article 217(1) inclusive of suitability again at the stage of re-appointment would affect the quality or character of justice administered by them during their initial term or towards the end of their term as suggested by the petitioners and no question of any violation of Article 14 or 21 is involved and the two decisions relied upon by Counsel for the petitioners do not support that contention.

621. I have already come to the conclusion that there is a valid classification between the proposed appointees for initial recruitment and the sitting Additional Judges whose cases for their continuance on the expiry of their initial term are to be decided and have further held that unlike the former the latter have a legitimate expectancy and an enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority and to be considered for their continuance either as Additional Judges or as Permanent Judges in their High Court. From this conclusion certain consequences logically ensue. First, if the sitting Additional Judges have this enforceable right to be considered for their continuance, it must follow that the eventual non-continuance, if any, can become a justiciable issue open to judicial review, if such non-continuance is based oh extraneous or non-germane considerations or is mala fide in law or in fact, and in that sense it will not be a case of non-appointment as is the case qua the proposed appointees at the stage of their initial recruitment. Secondly, it also follows that in substance and reality in extending their tern or making them permanent in their High Court no ‘fresh appointment’ in the sense of initial or fresh recruitment is involved, except for the formality of issuing a fresh warrant of appointment and taking a fresh oath. If that be the correct position then all the submissions made on behalf of the contesting respondent on the basis that granting them extension or making them permanent involves a ‘fresh appointment’ must be rejected and logically speaking the consultative process in so far as suit-ability under Article 217(1) is concerned is not attracted at all.

622. Even so, in view of the aspects of public interest that have been pressed into service, the question may be considered as to whether, when their continuance on the expiry of their initial term is being determined, the test of suitability under the consultative process of Article 217(1) should be invoked or gone through afresh ? The question thus posed assumes great significance but is ticklish and defines easy solution in view of the cogent and almost convincing rival submissions made on either side as summarized above but the answer to the same will have to be found only on objective considerations. At the outset it may be stated that it was not disputed before us that sitting Additional Judges are not on probation and cannot be regarded or dealt with as probationers. Question is what is the implication of admitting the position that “an Additional Judge is not a Judge on probation” as has been done by Shri Kankan in his counter-affidavit dated July 22, 1981 (filed in the Transfer Case No. 20 of 1961) ? It is true as has been pointed out by the learned Attorney General that they are not probationers in the sense that they have an indefeasible tenure though for the periods fixed in their warrants of appointment and that during such fixed tenure, like the Permanent Judges, they can be removed only by following the regular process for it as indicated in the Constitution and the Judges (Inquiry) Act, 1968 but in the context of their having an enforceable right not to be dropped illegally and to be considered for their continuance, will it be possible to confine the concept of probation to these two aspects mentioned by hum ? Does it mean that for deciding upon their continuance they should be treated as on probation ? The learned Attorney-General did not mince words when he contended that they should pass the test of suitability again at the time of deciding upon their continuance because he asserted that what has happened in the meantime during their short tenure (meaning their work, performance and behaviour as throwing light on their capacity, character, integrity and fitness) should be taken into consideration. It cannot he disputed that aspects like slow disposal, unsatisfactory performance, inefficiency, incompetency, suspected misbehaviour and/or reported lack of integrity all converge on suitability and therefore all these will have to be taken into consideration as suggested by him. However, the full implication of the admission made on behalf of the contesting respondents is that Additional Judges are not appointed to try out their fitness pending their further continuance either as Additional Judges or as permanent Judges; they are appointed, having passed the suitability test at the initial stage, to dispose cases instituted in the High Court in accordance with their Oath “without fear or favour, affection or ill-will” from the very; first day of their assuming office, though the occasion to appoint them arises because of a sudden increase in the work of High Court or arrears of work therein; in fact appoint-merit of Additional Judges on probation would be destructive of judicial independence. If, therefore, the Additional Judges are not on probation in any sense of the term, how can their continuance either as Additional Judges or Permanent Judges be made to depend upon the evaluation or assessment of their suitability as emerging from their work, performance and behaviour during their initial term ? Clearly the answer would be in the negative. On this reasoning aspects like low disposal, unsatisfactory performance, inefficiency and incompetency get easily ruled out but the real problem that requires to be faced is what should happen when aspects like suspected misbehaviour and/or reported lack of integrity on their part during their short tenure come to the fore ? This is the knottiest problem that has engaged my long and anxious consideration. Baldly put, the question is : Should an Additional Judge whose misbehaviour or lack of integrity has come to the fore be continued as an Additional Judge or confirmed as a Permanent Judge ? The answer at the first impulse and rightly would be in the negative but the question requires deeper consideration. If the misbehaviour or lack of integrity is glaringly self-evident the question of his continuance obviously cannot arise and in all probabilities will not engage the attention of the appointing authority, for, the concerned Judge in such a situation would himself resign but when we talk of misbehaviour or lack of integrity on the part of an Additional Judge having come to the fore, by and large the instances are of suspected misbehaviour and/ or reported lack of integrity albeit based on opinions expressed in responsible and respectable quarters and the serious question that arises is whether in such cases the concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon ? In my view since the question relates to the continuance of a high constitutional functionary like the Additional Judge of High Court it would be jeopardising his security and judicial independence if action is taken on the basis of merely opinion material. Moreover, no machinery having legal sanction behind it for holding an inquiry — disciplinary or otherwise against the concerned Judge on allegations of misbehaviour and/or lack of integrity obtains in the Constitution or any law made by the Parliament, save and except the regular process of removal indicated in Article 124(4) and (5) read with Article 218 and the Judges (Inquiry) Act, 1968. Therefore, the important question that arises in such cases of suspected misbehaviour and/or reported lack of integrity is who will decide and how whether the concerned Judge has in fact indulged in any misbehaviour or act of corruption? In the absence of satisfactory machinery possessing legal sanction to reach a positive conclusion on the alleged misbehaviour or an act of corruption the decision to drop him shall have been arrived at merely on she basis of opinions, reports, rumours or gossip and apart from being unfair and unjust to him such a course will amount to striking at the root of judicial independence. The other alternative, namely, to continue him as an Additional Judge for another term or to make him permanent if a vacancy is available and then take action for his removal under the regular process indicated in Article 124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968 may sound absurd but most hold to be inevitable if judicial independence, a cardinal faith of our Constitution, is to be preserved and safeguarded. Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public interest but at the same time preserving judicial independence is of the highest public interest. It is a question of choosing lesser evil and the inevitable course has to be adopted not for the protection of the corrupt or dishonest Judge but for protecting several other honest, conscientious and bard-working Judges by preserving their independence; it is a price winch the Society has to pay to avoid the greater evil that will ensue if judicial independence is sacrificed. Considering the question from the angle of public interest, therefore, I am clearly of the view that while considering the question of continuance of the sitting Additional Judges on the expiry of their initial term either as Additional Judges or as Permanent Judges the test of suitability contemplated within the consultative process under Article 217(1) should not be invoked — at least until such time as proper machinery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Article 124(4) and (5) of the Constitution.

623. However, the third ground of objection to bringing in the consultative process covering suitability under Article 217(1) at the stage of deciding upon their continuance does not impress me much. It is difficult to accept the contention that bringing in the suitability test under Article 217(1) at that stage is bound to affect the quality or character of justice administered by the sitting Additional Judges daring their initial term or towards the end of their term. In fact, so far on every occasion the consultative process inclusive of the suitability test under Article 217(1) has been resorted to white considering the question of granting extension to the Additional Judges or mating them permanent on the expiry of their initial term and no one has suggested that because of this their work, performance or behaviour was or has been guided by the anxiety to keep themselves on the right side of the Chief Justice of the High Court, the Chief Justice of India or the Appointing Authority. Instances are not wanting when within the first few days of mar assuming office they have delivered judgments dissenting from their Chief Justice as also of having rendered decisions un-palatable to the Executive when their term was about to expire. If the basic assumption made while putting forward the argument is not well founded then there will be no question of any violation of Articles 14 and 21 being involved. The two decisions on which reliance has been placed also do not support the contention urged on behalf of the petitioners. In the former decision (P.C. Sethi’s case (supra) though the Chief Justice’s order transferring the election petition from a Permanent Judge and allocating it to an Ad hoc Judge appointed under Article 224-A was set aside on the facts of the case, this Court at p. 215 (of SCR) : (at p. 215 of AIR) of the report observed thus:

It seems indeed desirable that election petitions should, ordinarity, if possible, be entrusted for trial to a permanent Judge of the High Court, even though we find that additional or acting judges or those requested under Article 224-A of the Constitution to sit and act as judges of the High Court, if assigned for the purpose by the Chief Justice, are legally competent to hear those matters.” If anything the observation suggests is that there is nothing illegal or improper if Additional or Acting or Ad hoc Judges hear and dispose of elections petitions though in that particular case because of ‘special facts and circumstances’ obtaining therein the Chief Justice’s order was interfered with. In the Other case (In re The Special Courts Bill, 1978) (supra), Clause 7 of the Special Courts Bill provided that Special Courts were to be presided over either by a silling Judge of a High Court or by a person who had held the office of a Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India and this Court pointed out a couple of infirmities in that Clause, namely, a retired Judge of the High Court unlike a sitting Judge did not enjoy security of tenure and would be holding his office as a Judge of the Special Court during the pleasure of the Government and it was conceivable that such a Judge presiding over the Special Court, if he displayed strength and independence might be frowned upon by the Government and there was nothing to prevent the Government from terminating his appointment as and when it liked. It was further pointed out that though his appointment was required to be made in consultation with the Chief Justice of India there was nothing in the Bill to show that his termination will also require similar consultation and even if it were assumed that such consultation would be made even for his termination the process of consultation, with its own limitations, would be a poor consolation to an accused whose life and honour was at stake. It is true that these infirmities in Clause 7 of the Bill were pointed out by this Court to emphasize the aspect that appointing a retired High Court Judge as a Judge of the Special Court Who is to be nominated by the Central Government to try a special class of cases may not inspire confidence not only in the accused but in the entire community. It is also true that on these infirmities being pointed out the then Central Government accepted the suggestion of the Court that only a sitting Judge of a High Court would be appointed to preside over a Special Court and that such appointment will be made with the concurrence of the Chief Justice of India. However, all these observations and views that emerge from the opinion or advice which this Court gave to the President in a reference under Article 143(1) of the Constitution, on which Counsel for the petitioners placed great reliance, must be understood in the context of the Special Courts Bill which had been drafted by the then Central Government for the purpose of trial of special type of offences allegedly committed by persons holding high public or political offices in the country in the peculiar circumstances that obtained during the last Emergency and for some period prior thereto, under which a special expeditious procedure for trial other than the normal procedure contained in the Criminal Procedure Code had been prescribed and those observations and views, therefore, would be inapplicable to the issue raised before us, for parity of reasoning, in the absence of parity of situation, is of no avail. However, for the reasons indicated earlier, in my view, at the time of deciding upon the continuance of the sitting Additional Judges on the expiry of their initial term the consultative process should be confined only to see whether the pre-conditions mentioned in Article 224(1) exist or not or whether pendency of work justifies their confirmation or not and the test of suitability contemplated within the consultative process under Article 217(1) cannot and should not be resorted to at all.

624. The next question that requires consideration is whether in the consultative process contemplated by Article 217(1) is any primacy intended to be given to the views or advice to be tendered by the Chief Justice of India in the matter of appointment of a High Court Judge or whether from amongst the three consulting functionaries the President (appointing authority) is entitled to choose or prefer the views or advice of anyone to those of the other or others ? It may be stated that this question really arises only in regard to the views or advice tendered on the suitability aspect and not on the aspect touching the existence of the pre-conditions of Article 224(1) or pendency of work justifying confirmation, because the former aspect is a matter of subjective assessment while the latter depends on objective facts over which no difference is likely to arise. I would also like to observe that the aforesaid question cannot at all arise in view of my conclusion that the test of suitability falling within the consultative process under Article 217(1) cannot and should not be resorted to, while deciding upon the continuance of sitting Additional Judges. Obviously the question cannot arise in cases of non-appointments qua proposed appointees at the time of their initial recruitment, for such non-appointments are cases of non sequitur. My conclusion thus completely obviates the dilemma posed in the question. However, I shall be considering this question on the assumption that I am wrong in my view that the test of suitability is not attracted and should not be invoked at the time of deciding upon the continuance of the sitting Additional Judges. The question of primacy obviously has to be considered by keeping in mind the object or purpose of providing for such consultation which was explained by Dr. Ambedkar in the Constituent Assembly thus:

There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter it governed in other countries…. (Here follows a reference to the practices obtaining in Great Britain and the United States)…. The Draft Article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in The matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex-hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

With regard to the question of the 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 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 an the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that, that is also a dangerous proposition.

(Vide Constituent Assembly Debates 1949, Vol. 8, page 258) (Emphasis supplied.) In other words the object of providing for such consultation clearly is that the same should act as a controlling or limiting factor on the discretion vested in the President while performing his executive function of making appointment of High Court Judges and neither the President nor the Chief Justice should have a power to veto a proposal Further, this question will have also to be considered in the light of what this Court has said about the almost binding character of the resultant advice flowing from the consultative process. In Sankalchand Sheth’s case (supra) dealing with the efficacy of consultation with the Chief Justice of India under Article 222(1) Krishna Iyer, J. at p. 502 (of SCR) : (at p. 2384 of AIR) of the report, observed:

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 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 accepting the advice of the Chief Justice of India…. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly.

In Samsher Singh’s case the Court was dealing with consultation with the High Court under Article 234 read with Article 235 and in that behalf Krishna Iyer, J. at p. 873 (of SCR) : (at p. 2228 of AIR) of the report has observed:

In all conceivable cases consultation 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 verdict of the Minister, if be 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 being ordinarily regarded as prompted by oblique considerations vitiating the order.

625. Keeping both the above aspects in mind one has to consider the question of primacy and in order to consider the same it will be necessary to set out Article 217(1) which runs thus:

217(1). Every Judge of the High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office in the case of an Additional or Acting Judge as provided in Article 224 and in any other case until he attains the age of 62 years.

On the question as to whether any primacy is intended to be accorded to the views or advice that would be tendered by the Chief Justice of India during the consultative process over the views or advice of the other two consulting functionaries (Governor of the State and the Chief Justice of the High Court) or whether all the three consulting functionaries are of co-ordinate authority so as to accord equal efficacy to each one’s views or advice, the Article is clearly silent and simply because the expression ‘consultation’ has been used, it does not mean that the President has absolute authority or discretion in the matter because as explained by Dr. Ambedkar consultation has been provided with the object of limiting the authority or discretion of the President. Question is whether when the three functionaries differ in their views or advice has not the President a choice to prefer the views or advice of one of the three ? Counsel for contesting respondents contended that the President must have the right to make a choice as no one functionary has been given any primacy and in support Counsel strongly relied upon the fact that during the constituent assembly debates a specific amendment was moved by Mr. B. Pocker Sahib from Madras to the original Draft Article 193(1) (which was in identical terms as the present Article in so far as is material) to the effect that every Judge should be appointed by the President “on the recommendation of the High Court concerned, after consultation with the Governor of the State concerned and with the concurrence of the Chief Justice of India clearly seeking to give higher importance or status to the Chief Justice of India in the matter (vide Constituent Assembly Debates 1949, Vol. VIII page 658) but the said amendment was rejected and the Draft Article became the present Article 217(1). It was urged that the rejection of the amendment is a clear pointer indicating that the Constituent Assembly wanted to give co-ordinate authority to each one of the three consulting functionaries and no primacy was intended to be given to the views or advice of any particular functionary.

626. In the first place in the very nature of things it is difficult to accept the submission that all the three consulting functionaries under Article 217(1) must be regarded as of co-ordinate authority for the simple reasons that on aspects like capacity, character, merit, efficiency and fitness which converge on the suitability of the person proposed for appointment the Governor of the State will be least informed and will have nothing to say whereas the Thief Justice of the High Court and Chief Justice of India, being best informed, are well equipped to express their views and tender advice; further it is an accepted position which has been alluded to by the Law Commission in its 14th Report, that it is because of the financial aspect (salary and emoluments of a High Court Judge being charged on the Consolidated Fund of the State) and information about the antecedents, local affiliations and like other matters, capable of objective proof, concerning the proposed appointee which the State Executive would be possessing, that consultation with the Governor has been provided for. It is, therefore, difficult to regard the Governor of the State as being of co-ordinate authority with the other two consulting functionaries especially on the aspect of suitability which is the primary thing in the matter of making appointment of High Court Judges. Secondly, in my view, Mr. Pocker Saheb’s rejected amendment has nothing to do with the primacy question at all because it was concerned with the effort at complete exclusion of the executive interference in the matter of appointment of the High Court Judges. If the amendment had been accepted the result would have been that the appointment shall have been made with the initiation of the proposal by the Chief Justice of the High Court, the consultation with the State Executive being retained because of the financial aspect and information regarding antecedents, etc. and only upon the concurrence of the Chief Justice of India, which, in other words, means the Chief Justice of India would have had the power to veto any proposal. In my view, conferring a power of veto on the Chief Justice of India is entirely different from the primacy being given to his views or advice over and above the views or advice of the other consulting functionaries, as a limiting factor on the President’s discretion. Dr. Ambedkar also understood the proposed amendment of Mr. Pocker Sahib in this manner and pleaded for its rejection on the ground that it sought to confer a power of veto on the Chief Justice of India which he thought was undesirable. The rejection of the amendment, therefore, has no bearing whatsoever on the question of primacy with which the Court is concerned at the moment Thirdly, once it is realised that the scope and ambit of full and effective consultation requires that all the material facts and records concerning the proposed candidate must be made available to both these consulting functionaries by placing the same before each during the consultative process and that each consulting functionary must consider the same or identical material and exchange each one’s views thereon with the other there is no merit left in the argument that the Chief Justice of the High Court has a closer opportunity to assess the suitability of the proposed appointee; surely it is not a case of watching the demeanour of a witness so as to put the assessment of the Chief Justice of the High Court on any higher footing. Having regard to these aspects, particularly the last one, one will have to consider whether any primacy could be and should be given to the views and advice tendered by the Chief Justice of India to the President in the matter of appointing High Court Judges. I must confess that the Article does not expressly suggest that any primacy is to be accorded to his advice during the consultative process undertaken in Article 217(1) but, in my view, the scheme of consultative process contemplated by that Article envisages consideration of identical facts and materials bearing on the suitability of the candidate by both the consulting functionaries, namely, the Chief Justice of the High Court and the Chief Justice of India, as also an exchange of their views on such material, and thereafter placing of the entire material together with each one’s views thereon and the tendering of the advice or final recommendation by the Chief Justice of India to the President whose decision should be guided by such advice or final recommendation so tendered. If such be the scheme envisaged by Article 217(1) — and I am of the opinion it does envisage such a scheme, then clearly by implication primacy is intended to be given to the advice that would be tendered by the Chief Justice of India to the President. In any event, I would suggest that evolving such a scheme regarding the consultative process under Article 217(1) would be in fitness of things as primacy shall have been given to the advice or final recommendation to be tendered by the Chief Justice of India who happens to occupy the highest constitutional position as the head of the Indian Judiciary. It may be noted that giving primacy to the advice of the Chief Justice of India in the matter of appointment of High Court Judges is not to give power to veto any proposal as was contemplated by Mr. Pocker Saheb’s amendment nor would giving such primacy to his advice mean that the Chief Justice of India would be enjoying unfettered arbitrary powers, for, if his advice has proceeded on extraneous or non-germane considerations the same shall be subject to the judicial review just as the President’s final decision is so subject if he were to disregard the advice of the Chief Justice of India unless the same is justified for cogent and convincing reasons. But the point I would like to emphasise is that construing Article 217(1) as envisaging the scheme of the nature indicated above would go a long way in preserving judicial independence rather than not according primacy to Chief Justice of India’s advice and permitting the President to act as an arbiter between the divergent views of the two high constitutional functionaries and leaving him to prefer the views of one to the other.

627. Having considered the question of primacy as aforesaid, I would like to make a couple of observations on the basis that the suitability test is required to be passed by the sitting Additional Judges over again at the time of deciding upon their continuance either as Additional Judges or as Permanent Judges. The consultative process even on this occasion must be full, complete and effective as is the case with the consultative process that is required to be gone through under Article 222(1) when the question of transfer of a Judge from one High Court to another High Court is considered. Further, the procedure to be followed at the time of undertaking such consultative process must also ensure fair play qua the concerned sitting Additional Judge. In other words, though the principle of natural justice in its full vigour is not contemplated, the sitting Additional Judge should not receive a raw deal at the hands of the consulting functionaries and either one or the other or if necessary both should hear him, especially if any adverse material is weighing in their minds against him, just as in the case under Article 222(1) the personal difficulties and other grounds of objections of the proposed transferee are considered by the consulting functionary. In other words, in my view the scope and ambit of the consultative process under Articles 217(1) and 222(1) we and must be the same,

628. I shall next deal with the question of short-term extensions which have been challenged by the petitioners as being directly subversive of the independence of Judiciary and, therefore, not contemplated by the Constitution. The contesting respondents in that respect have placed strong reliance upon the provision contained in Article 224(1) to suggest that such short-term extensions are contemplated and fall within the power conferred upon the appointing authority under that Article. It is true that Article 224(1) confers power on the President to appoint duly qualified persons to be Additional Judges of a High Court if the preconditions mentioned therein exist “for such period not exceeding two years as he may specify”. Relying on the phrase “for such period not exceeding two years as he may specify” occurring in the Article, the contesting respondents have claimed that that phrase only fixes the maximum period of two years at a time, that the Article does not limit the discretion of the appointing authority in the matter of the period for which an Additional Judge can be appointed except in regard to the ceiling of two years and that the appointment can be for a shorter period which period is not justiciable and what has been urged is that the period must of necessity get correlated to the continued existence of the pre-conditions relating to the volume of work for which the appointments are to be made. Such a literal construction is difficult to accept because no 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. It cannot be disputed that security of tenure ensures judicial independence and tenures for short-terms like three months, six months or nine months bring in insecurity directly impinging on judicial independence and also tend to shake the faith of the community in the administration of justice and, therefore, would be unconstitutional. Moreover, granting short-term extensions for periods like three months, six months, or nine months ‘pending inquiry into the complaints’ said to nave been received against some of the sitting Additional Judges, as has been admitted by Shri Kankan in his counter-affidavit on behalf of the contesting respondents, would be clearly outside the contemplation of the Constitution for no machinery having legal sanction behind it has been provided for either in the Constitution or any other law authorising such inquiry or investigation into the complaints against sitting Additional Judges and the practice of giving short-term extensions on such ground must be deprecated and regarded as unconstitutional. I have already held that the suitability test is not attracted while deciding upon the continuance of the sitting Additional Judges but assuming that it is required to be gone through the process must be completed well in advance of the date of expiry of their initial term or if for any reason it cannot be so completed the concerned Additional Judge must be given extension for at least one year. In this behalf I would again like to refer to the constitutional convention or practice that has grown over the years, notwithstanding the phrase “for such period not exceeding two years as he may specify” occurring in Article 224(1), which is to appoint Additional Judges initially for a period of two years, which has come to be regarded as the ‘normal term’ and on the expiry of this term to continue them for a further period of two years and so on till they are confirmed as Permanent Judges, subject, of course, to the pre-conditions continuing to obtain in that High Court and it has been pointed out that Article 224(1) has been work-ed in that manner over the years. In any case no extension for less than a year should ever be granted irrespective of whether volume of work justifies it or not simply with a view to give the Judge concerned fixity of tenure for that period. Further, it is extremely desirable and necessary that orders granting extensions to sitting Additional Judges or making them permanent are issued and intimated to the concerned Judges and not merely to the Constitutional authorities as was suggested during the vacation hearing, well in advance of the date of expiry of their term and not at the eleventh hour keeping them on tenter-hooks till the last moment. After all the sitting Additional ‘Judges are high Constitutional functionaries possessing the same position, powers and privileges as the Permanent Judges, and deserve due consideration and respectful treatment at the bands of the appointing authority.

629. Apropos their challenge to short-term extensions the petitioners have contended that Article 216 of the Constitution casts a primary obligation upon the President mandatorily to provide adequate permanent strength to every High Court to cope with its normal business so as to ensure its disposal within reasonable time and to review such strength from time to time so that arrears do not accumulate and justice to litigants is not unduly delayed, while the power to appoint Additional Judges under Article 224(1) is only to meet, (a) temporary increase in the business of the High Court or (b) arrears of work therein, and the complaint is that the appointing authority or the Union Government has failed to discharge its mandatory obligation under Article 216 and has gone on appointing Additional Judges even when a substantial increase in the normal business is there in almost every High Court justifying the reviewing of the permanent strength of those High Courts. The contention has been that the objective facts obtaining in many High Courts unmistakably demonstrate that the increase of business is not of a temporary character but is a permanent increase every year and that the arrears have increased and accumulated to an appreciably disturbing level with no reasonable prospects of substantially reducing the same over a period of years and, therefore, the President cannot resort to Article 224(1) but has to increase the permanent strength by making permanent appointments under Article 217 read with Article 216. In any case it is urged that Additional Judges cannot be appointed while keeping permanent post vacant as is happening at present frequently. The submission of the petitioners therefore has been that in view of such reality, obtaining in various High Courts the action on the part of the appointing authority in keeping a, large number of sitting Additional Judges as Additional Judges would be arbitrary and unconstitutional and clear case exists for declaring them to be deemed to have become permanent or for directing the President to make them permanent by appropriately increasing the permanent strength in the concerned High Courts and it will be within the powers of this Court to pass appropriate orders or give necessary directions in this behalf. In support of these submissions statements containing statistical materials pertaining to Bombay High Court and Delhi High Court were relied upon and on the question of Courts’ power to grant appropriate reliefs reliance was placed upon two decisions of this Court, namely, Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs and Y. Mahaboob Sheriff v. Mysore State Transport Authority .

630. On the other hand, Counsel for the contesting respondents denied that the appointing authority has failed to discharge its obligation to provide adequate permanent strength in the High Courts. It was not disputed that the volume of work in almost every High Court has increased tremendously and heavy arrears have accumulated and are ever mounting but it is pointed out that whenever any Chief Justice of any High Court had asked for an increase either in the permanent strength or in the strength of Additional Judges such request was always considered and responded to satisfactorily. On the question of liquidating arrears it has been pointed out that the problem is not merely related to the strength of either permanent or Additional Judges obtaining in High Court but depends on numerous other factors and several suggestions in the direction of finding a solution to that problem have been under active consideration of the Union Government Counsel, however, strenuously disputed that in this area appertaining to executive function of the appointing authority and/or the Union Government this Court can grant relief by way of declaring the sitting Additional Judges to be deemed to have become permanent or by directing the President to make them permanent by appropriately increasing the permanent strength in the concerned High Courts as has been prayed for by the petitioners.

631. On a consideration of 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 authority) to provide adequate strength of permanent Judges in every High Court to cope with and dispose of its normal business 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. Article 224(1) as has been stated earlier, confers power on the President to appoint Additional Judges only to meet the situation arising from (a) temporary increase in the business of the High Court, or (b) arrears of work therein. In other words if the increase in the work or business of the High Court is not of a temporary character but a permanent increase every year resort will have to be made to Article 216 and not to Article 224(1). Further, I would also like to observe that ordinarily it will not be proper to appoint an Additional Judge in a High Court while keeping a permanent post vacant or unfilled. But beyond making these observations which should guide the exercise of the power both under Article 216 and Article 224(1) by the appointing authority I am satisfied that it will not be proper for this Court to give the directions or reliefs sought by, the petitioners for the reasons which I shall presently indicate. In the first place it cannot be disputed that appointing Judges to a High Court either as permanent Judges or Additional Judges is purely an executive function entrusted by the Constitution to the appointing authority and it will not be proper for this Court to usurp that function to itself or issue any directions in that behalf unless forced by glaringly compelling circumstances. Secondly, no direction or relief us sought is possible unless a full, complete and correct assessment about the requisite strengths of Permanent as well as Additional Judges of every High Court as on a particular date is made available to the Court Thirdly such assessment about the requisite strengths for every High Court must depend on statistical data to be collected throwing light on ‘normal business’, ‘temporary increase’, and ‘arrears of work’ in each High Court after fixing the rate of disposal per Judge per year and defining what should be regarded as ‘main cases’, ‘miscellaneous cases’ or ‘interlocutory cases’ etc.; the norm in regard to such matters being a variable criterion requiring refixation depending on facts, circumstances and situation as and when they develop. It would, therefore, be extremely difficult for this Court to issue directions or grant reliefs of the nature sought by the petitioners. Moreover, relief by way of declaring the sitting Additional Judges to be deemed to have be-come permanent is sought on the footing that the President should be deemed or taken to have done what he ought to have done in the circumstances of the case but it will be difficult to accept the position that when the President has appointed a duly qualified person as an Additional Judge for two years he should be deemed to have appointed him as the Permanent Judge under Article 216. Though no particular Article is not referred to in the warrant of appointment reference in the warrant to the fact that the person has been appointed “an Additional Judge” and the mentioning of the short-period therein will clearly negative any intention on the part of the President to appoint him a permanent Judge, notwithstanding the duty having arisen in the circumstances of the case to make a permanent appointment. For these reasons I do not think that this Court should issue the directions or reliefs sought by the petitioners in this behalf and it is hoped that the observations made above will guide the future course of action of the appointing authority.

632. The next question on which a great deal of argument was advanced at the Bar by Counsel for the petitioners is whether before effecting a transfer of a Judge from one High Court to another his ‘consent’ to such transfer should be obtained or not, that is to say, whether the words “with his consent” should be read into Article 222(1) of the Constitution or because a transfer involves a ‘fresh appointment’. Article 222(1) runs thus:

The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to another.

It must be observed that this question was considered and decided by this Court in Sankalchand Sheth’s case (supra) in the negative by a majority of 3 : 2 but according to Counsel for the petitioners the majority view requires reconsideration and since these cases were heard by a larger Bench of seven Judges he addressed the Court elaborately on the point. Before dealing with the various aspects of the contention urged by the Counsel for the petitioners in this behalf it will be desirable to set-out in brief the background in which that question arose for consideration and in what manner the same was dealt with in that case both by the Gujarat High Court at the initial stage and by this Court in appeal. During the last Emergency a mass transfer of Permanent Judges from one High Court to another was attempted in the name of national integration and in May, 1976 it had been proposed to transfer 56 Judges of the various High Courts and as the first instalment 16 Judges, including Chief Justices, were in fact transferred. Justice Sankalchand Sheth, one of the transferees, was shifted from Gujarat High Court to the High Court of Andhra Pradesh. He filed a writ petition in the Gujarat High Court against the Union of India and Chief Justice A.N. Ray challenging the order of transfer as void and inoperative, inter alia on grounds of promissory estoppel, no effective consultation, and want of consent on his part which should be read into Article 222(1). The Union of India in its affidavit in reply supported the impugned order, inter alia, on the ground that the power of the President to transfer a Judge was absolute save and except that he had to consult the Chief Justice of India and as this had been done the transfer was valid; that there was no question of promissory estoppel and that no consent was required. No reasons were given for the transfer but the policy of transfer was justified on the ground of national integration. No affidavit in reply was filed by the Chief Justice of India who was the 2nd respondent to the petition. The matter was beard by a Full Bench of Gujarat High Court which unanimously rejected the petitioner’s plea of promissory estoppel. By a majority, consisting of Mehta and D.A. Desai, JJ. the Full Bench rejected the petitioner’s contention that ‘consent’ must be read into Article 222(1) and also the contention that as a transfer of a Judge involves fresh appointment such appointment could not be made without the Judge’s consent. A.D. Desai, J. however, in a minority view, upheld the petitioner’s contention as regards ‘consent’ on both the grounds, that is to say, he held that ‘consent’ must be read into Article 222(1) and that since a transfer of a Judge involves a fresh appointment it could only be done with the Judge’s consent. However, all the three Judges unanimously held that the order of transfer was void as it had been made without the requisite consultation with the Chief Justice of India as contemplated by Article 222(1) on its true interpretation. Feeling aggrieved by this judgment of the Gujarat High Court the Union of India preferred an appeal to this Court under Certificate granted by the High Court, which was heard by a Constitution Bench of five Judges of this Court. On a statement being made by the learned Attorney-General for the Union of India to the effect that on the facts and circumstances of the case on record the then Government did not consider that there was any justification for transferring Justice Sheth from Gujarat High Court and proposed to transfer him back to that High Court, Counsel for Justice Sheth stated that his client was prepared to withdraw his writ petition with the leave of the Court. Though the appeal got settled as above to the satisfaction of Justice Sheth, the Constitution Bench desired to consider important issues arising in the case which related to the aspect of judicial independence involved in transfer of High Court Judges and after hearing arguments from Counsel on either side delivered its judgment expressing its views on the issues involved. It may be stated that the plea of promissory estoppel was not pressed and was not considered by this Court. On the aspect of ‘consent’ of the Judge concerned qua Article 222(1) the Bench was divided in its opinion, the majority of the Court (Chandrachud, Krishna Iyer and Fazal Ali, JJ.) upon a consideration of the wording of the Article itself in the context of the scheme, other provisions and all relevant aspects held that as a matter of construction ‘consent’ could not be read into Article 222(1) and further that consent of the Judge who was transferred was not necessary as transfer involved no fresh appointment; the majority further held that the power to transfer could not be exercised by way of punishment but could be exercised only in public interest and after consultation with the Chief Justice of India and that public interest and consultation with the Chief Justice of India were sufficient safeguards against the abuse of power under Article 222(1) and with these built-in-safeguards it was unnecessary to read ‘consent’ in that Article. Bhagwati, J. upheld both the contentions of the original petitioner, namely that as a matter of construction ‘consent’ should be read into Article 222(1) and secondly consent of the concerned Judge who was transferred was necessary as a transfer involved a fresh appointment. Untwalia, J. held that although consent could not be read into Article 222(1) as a matter of construction, such consent was necessary because the transfer of a Judge involved a fresh appointment.

633. It may be stated that before arriving at the aforesaid conclusions the Judges have expressed their considered views on several aspects concerning the power of transfer vested in the President under Article 222(1) in the context of the concept of independence of judiciary to which a brief reference will be appropriate. In the first place all the Judges have emphasised the fact that the framers of our Constitution had taken the utmost pains to secure the independence of the Judges of the Supreme Court and the High Courts and in that behalf several provisions in the Constitution were referred to — a position which was not disputed by the Attorney-General for the Union of India. Further, all the Judges rejected the claim made on behalf of the Union Government that the power conferred on the President under Article 222(1) was absolute or that if he were to “consult” the Chief Justice of India there was an end of the matter and the order of transfer could not be questioned. The Court held that the power of transfer conferred on the President under Article 222(1) was subject to two built-in-safeguards : (i) that it must be exercised in public interest alone and not in order to punish a Judge or to make him toe the Government line and (ii) that it must be exercised after full, complete and effective consultation with the Chief Justice of India; in other words an order of transfer would become a justiciable issue and be liable to be quashed or set aside if (a) it was not in public interest or (b) it was passed without full, complete and effective consultation or (c) if the opinion or advice of the Chief Justice of India was ignored or brushed aside without cogent reasons. On the scope and efficacy of consultation contemplated under Article 222(1) two learned Judges Chandrachud, J. and Krishna Iyer, J. dealt with those aspects at some length and the other learned Judges have substantially expressed their agreement with their views on the point The effect of the observations on the scope of consultation can be briefly stated thus : Consultation with the Chief Justice is obligatory and a condition precedent to the exercise of that power by the President; such consultation must be a real, substantial and effective consultation and in order that it should be so, all relevant facts in support of the proposed action of transfer must be placed before the Chief Justice and all his doubts and queries must be adequately answered; the consultation casts an obligation and a duty on the Chief Justice to elicit information not merely from the President and the Judge concerned but from such quarters as he thinks fit on all relevant aspects healing on the desirability, advisability and necessity of the proposed transfer including factors personal to the Judge concerned such as his health, extreme family factors involving dislocation etc. so as to leave him no pounds to complain of arbitrariness or unfairplay. On the efficacy of the resultant advice tendered by the Chief Justice, Krishna Iyer, J. observed at p. 502 (of SCR) : (at p. 2384 of AIR 1977 SC) of the Report thus:

Secondly, although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily.

Again after quoting passage from the Judgment in Chandramouleshwar’s case and after referring to his own judgment in Samsher Singh’s case (supra) in which he struck the same chord, he observed thus (at p. 2384):

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 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 accepting the advice of the Chief Justice of India.

The learned Judge has further gone on to observe thus (at p. 2385):

The dangers of arbitrary action or unsavory exercise has been minimised by strait-jacketing of the power of transfer. Likewise, the high legal risk of invalidation of the Presidential order made in the teeth of the Chief Justice’s objection, runs in an added institutional protection. For, it is reasonable for the Court, before which a Judge’s transfer is challenged, to take a skeptic view and treat it as suspect if the Chief Justice’s advice has been ignored.

634. It may also be stated that according to Chandrachud, J. just as the safeguard of public interest kept transfers by way of punishment outside the purview of Article 222(1) the safeguard of effective consultation also indicated that policy transfers on a wholesale basis were also outside the scope of that Article. As regards the plea of national integration on the basis of which the transfers of 16 permanent Judges were sought to be justified, Chandrachud, J. expressed the view that it was a moot point whether it would be necessary to transfer Judges from one High Court to another in the interest of national integration but since it was a policy matter the Court was not concerned with it directly but suggested that considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another High Court involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose, and further added that if at all oh mature and objective appraisal of the situation it was still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object could be more easily and effectively attained by making appointments of outsiders initially but he categorically observed that the record of the case before the Court did not bear out the claim that any of the 16 High Court Judges had been transferred in order to further the cause of national integration and the true position was far from it. On the question of non-consensual transfers being within the Article Krishna Iyer, J. summed up the position thus (at p. 2383 of AIR 1977 SC):

Logamachy may confuse, philosophy may illumine, teleology may shed interpretative sheen. We have considered the design, the source, the impact and the engineering aspects of Article 222. At the end of the journey we feel clearly that the power of non-consentaneous transfer does exist. Salutary safeguards to ensure judicial independence with concern for the All India character of the superior Courts in the context of the paramount need of national unity and integrity and mindful of the advantages of Inter-State cross-fertilization and avoidance of provincial perviciousness were all in the calculations of the framers of the Constitution. A power is best felt by its aware pretence and tare exercises.

635. Counsel for the petitioners principally urged two grounds before us which according to him necessitate a reconsideration of the majority view in Sankalchand Sheth’s case about non-consensual transfers being within the purview of Article 222(1) which I propose to discuss one after the other. In the first place according to Counsel one of the principal reasons why the majority felt that there was no need to read the words “with his consent” into Article 222(1) was that the power to transfer thereunder could not be exercised by way of punishing a High Court Judge, which aspect was exclusively governed by Article 218 read with Article 124(4) and (5), but had to be exercised only in public interest and after effective consultation with the Chief Justice of India and that public interest and such consultation were sufficient safeguards against the abuse of power under that Article but the safeguard of public interest so as to prevent the exercise of the power by way of punishment will be found to be illusory if the examples of transfers in public interest as have been given by Chandrachud, J. in his judgment are care-fully scrutinised; for, according to Counsel the illustrative cases of transfers in public interest as given by the learned Judge on analysis will be found to involve misbehaviour mentioned in Article 124(4) and therefore in those illustrative cases though the transfers may appear to be in public interest in one sense they would be really by way of punishment and as such there is a contradiction at the heart of the judgment. Reliance in this behalf was placed on the following passage occurring in the judgment of Chandrachud, J. at p. 446 (of SCR) : (at p. 2341 of AIR):

Experience shows that there are cases, though fortunately they are few and far between, in which the exigencies of administration necessitate the transfer of a Judge from one High Court to another. The factions local atmosphere sometimes demands the drafting of a Judge or Chief Justice from an-other High Court and on the rarest occasions which can be counted on the fingers of s hand, it becomes necessary to withdraw a Judge from a circle of favourites and non-favourites. The voice of compassion is heard depending upon who articulates it though transfers in such cases are preeminently in public interest, it will be impossible to achieve that purpose if a Judge can-not be transferred without his consent. His personal interest may lie in continuing in a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be severed to act as a reminder that “the place of justice is hallowed place.

It is pointed out that in the cases mentioned above, if the veil of the language of judicial courtesy was lifted, it will appear clear that the power of transfer that would be used would be to punish a Judge for misbehaviour, for which, as the judgment points out, action has to be taken only under Article 218 read with Article 124(4) and (5). For instance, a transfer brought about by “the factious local atmosphere” put in plain language means that a Judge or Chief Justice is failing to administer justice impartially by favouring or disfavouring a faction; similarly, where a transfer is effected in order “to withdraw a Judge from a circle of favourites and non-favourites” it would be a clear case of the Judge being guilty of gross misbehaviour in clear violation of his judicial oath. It is, therefore, urged that though in such cases, the transfers may apparently be in public interest they are really by way of punishment and as such the safeguard of public interest is of no avail. In fact, according to Counsel transfers of such Judges would run counter to public interest as these Judges should not be inflicted on other High Courts to vitiate the atmosphere there. Counsel further urged that if regard be had to the ordinary dictionary meaning of the word ‘punishment’ it is clear that punishment means; “pain, damage or loss inflicted” (without any retributive or judicial character) and in this sense every transfer of a High Court Judge from one High Court to another without his consent would amount to punishment since it inflicts on him personal injury, loss or damage in the sense of uprooting him from his moorings, his being required to have two establishments, suffering a dislocation in family affairs, etc., apart from the slur involved in being so transferred. It is further pointed out that the main safeguard is of public interest and the safeguard of effective consultation is secondary arising out of and in furtherance of the main safeguard and as such if the principal safeguard fails the secondary safeguard, which is in furtherance of it, would also fail. If, therefore, both the safeguards, the principal as well as the secondary, become illusory and if punishment is involved in every transfer without consent then one of the principal reasons suggested by the majority fop not reading consent into the Article must disappear and there would be the need to read ‘consent’ into the Article so as to obviate the element of punishment.

636. It is difficult to accept the aforesaid line of argument as necessitating the reconsideration of the majority view in Sankalchand Sheth’s case (supra) for the reasons which I shall presently indicate.

637. But before dealing with the contention I would like to observe that I am in agreement with Counsel for the petitioners that the illustrative cases given in the passage quoted above are in substance where Judges could be said to be guilty of misbehaviour falling under Article 124(4) and that their transfer to other High Courts, apart from being by way of punishment, would amount to doing great dis-service to public interest. In this context I would like to emphasize that the safeguard of public interest read into Article 222(1) is not intended for protecting any black-sheep in the judiciary but for protecting the numerous honest, conscientious hard-working Judges and I have always been of the confirmed view that no corrupt or dishonest Judge, and nor a Judge, who contrary to his oath of office, indulges in any kind of favouritism while discharging his duties — who could be likened to a rotten egg, should be tolerated in the judicial basket and he deserves to be dealt with under Article 218 read with Article 124(4) and (5) but not by transferring him to another High Court, for, such a transfer would be contrary to public interest. That is why I would reiterate that a transfer by way of punishment for misbehaviour is clearly outside the purview of Article 222(1) and similarly, any transfer with an oblique motive or for an oblique purpose, such as for not toeing the line of the Executive or for rendering decisions unpalatable to the Executive or for having for some reason or the other fallen from the grace of the Executive, would also be outside its purview and liable to be struck down, if oblique motive or purpose is established.

638. Turning to the contention, it must, in the first place be pointed out that the mere fact that the illustrative cases of transfers given by Chandrachud, J. in his judgment as being in public interest are in substance and reality cases of transfers by way of punishment does not mean that there can be no cases of transfers purely in public interest without any element of punishment being involved. Cases of transfers in public interest pure and simple without involving any element of punishment are conceivable with the result that the safeguard of public interest dwelt at length in the judgment cannot be said to be illusory or otiose. When Article 222, as inserted anew by Drafting Committee in the Revised Draft Constitution prepared on Nov. 3, 1949, was discussed in the Constituent Assembly on Nov. 16, 1949. Dr. B.R. Ambedkar indicated the purpose of inserting the provision in the Revised Draft and gave at least two instances of transfers which would purely be in public interest. This is what he said:

The Drafting Committee felt that since all the High Courts so far as the appointment of Judges is concerned form now a Central subject it was desirable to treat all the Judges of the High Courts throughout India as forming one single cadre like the I. C. S. and that they should be liable to be transferred from one High Court to another. If such power was not reserved to the center the administration of justice might become a very difficult matter. It might be necessary that one Judge may be transferred from one High Court to another in order to strengthen the High Court elsewhere by importing better talent which may not be locally available. Secondly, it might be desirable to import a new Chief Justice to a High Court because it might be desirable to have a man unaffected by local politics or local jealousies. We thought, therefore, that the power to transfer should be placed in the hands of the Central Government.

We also took into account the fact that this power of transfer of Judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular Judge from its High Court because that Judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We have taken care that in effecting these transfers no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of general administration. Consequently, we have introduced a provision that such transfers shall take place in consultation with the Chief Justice of India who can be trusted to advice the Government in a manner which is not affected by local or personal prejudices. (vide : Constituent Assembly Debates Vol. 11 p. 580).

It is thus clear that transfers under Article 222(1) have to be made only in public interest the ground being convenience of the general administration and the two instances given by Dr. Ambedkar (vide : the underlined portion in first para) would clearly fall within the ambit of this ground and such transfers would be purely in public interest without any element of punishment being involved therein. Yet another instance of a transfer which could be said to be purely in public interest would be where the same is effected for remedying unsatisfactory working conditions obtaining in a High Court for reasons beyond the control of the Judge concerned and for which he is not responsible in any manner; similarly, if a particular Judge by reason of his nature and temperament is unable to get along with the Chief Justice or any of his colleagues in a High Court his transfer would be in public interest and not by way of punishment in the sense in which that expression is to be understood in the context of the power to transfer under the Article. In such cases the power to transfer a Judge from one High Court to another without his consent would be appropriate and justified. Coming to the aspect of punishment put forward by Counsel for the petitioners it must be observed that when it is said that the power of transfer under Article 222(1) cannot be and should not be exercised by way of punishment what is intended to be conveyed is that the Judge concerned should not be transferred for misbehaviour falling under Article 124(4) or with oblique motive or for oblique purpose indicated above, which alone would be by way of punishment in the correct sense of that expression in the context of the power as contained in the Article and not that he should not be subjected to the kind of punishment which is inherent in the transfer. In my view, there is a clear distinction between the punishment involved in making the transfer for misbehaviour or out of oblique motive and the punishment which is inherent in the order of transfer in the sense of infliction of personal injury, loss or damage arising out of his moorings being severed, be being required to have two establishments or his suffering a dislocation in his family affairs, etc. Further, it is not as if this latter aspect of punishment which is inherent in an order of transfer is being totally ignored before passing the order of transfer, for, precisely these very aspects concerning the Judge proposed to be transferred are required to be taken into consideration and given due weight by the Chief Justice of India during the consultative process which he is required to undertake for observing the second safeguard of full and effective consultation. It is, therefore, not possible to accept the contention that the two safeguards of public interest and effective consultation subject to which the power of transfer is to be exercised are either illusory or unreal and if they afford real protection to the Judge concerned against the abuse of power as suggested in the majority view there would be no need to read consent into Article 222(1).

639. The other ground which necessitates the reconsideration of the majority view, according to the Counsel for the petitioners, is that while rejecting the contention of the original petitioner that a transfer of a Judge from one High Court to another involves “a fresh appointment” and, therefore, his consent to the transfer would be necessary, both Chandrachud, J. and Krishna Iyer, J. have proceeded on the basis that the Government of India Act 1935 did not contain any provision for the transfer of a Judge and contrasted Section 220(2), Proviso (c) of that Act with Article 217(1)(c) of the Constitution and took the view while enacting the latter provision the framers of the Constitution had made a distinction between ‘appointment’ and ‘transfer’ by using these two expressions in contradistinction with one another while providing that “the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or his being transferred by the President to another High Court within the territory of India” (see : Article 217(1)(c)). In other words), by contrasting the provision contained in Section 220(2), Proviso (c) of the Government of India Act 1935 with Article 217(1)(c) of the Constitution both the learned Judges took the view that the expression ‘appointment’ in the first part of the latter provision meant ‘fresh appointment’ while the expression ‘transfer’ used in the latter part did not mean fresh appointment and for taking such a view and that the two expressions had not been interchangeably used reliance was placed on the supposed absence of any provision for a transfer of a Judge in the Government of India Act, 1935. But Counsel has submitted that Government of India Act, 1935 did contain a provision for the transfer of a Judge and in that behalf reliance was placed upon the fact that Proviso (c) to Section 220(2) was introduced with retrospective effect from April 1, 1937 by Section 2 of the India (Miscellaneous Provisions) Act, 1944 enacted by the British Parliament and it was pointed out that though the actual Proviso (c) used the word ‘appointment’, the Marginal Note of Section 2 ran thus : “Judges to vacate office on transfer” and even during the discussion that took place on the Bill, Earl of Munster addressing the House of Lords and the Secretary of State for India Mr. Amery addressing the House of Commons while explaining the provision that was being inserted with retrospective effect stated that the said provision was being made providing for vacating the office of a Judge on his transfer to another High Court or to the Federal Court. In other words, what has been urged by counsel for the petitioners is that the Marginal Note to Section 2 of the India (Miscellaneous Provisions) Act, 1944 as well as the debates in the House of Lords and House of Commons clearly indicate that Proviso (c) which was added with retrospective effect to Section 220(2) of the Government of India Act, 1935 really dealt with transfer of a High Court Judge when be was either appointed to another High Court or to the Federal Court that is to say, the expression ‘appointment’ has been used really to connote a transfer, suggesting an interchangeable use of the two expressions by the British Parliament and, therefore, the basis adopted by the learned Judges for drawing a distinction between ‘appointment’ and ‘transfer’ would disappear and, therefore, the conclusion arrived at would not be correct. Counsel fairly stated that Reports of British Parliamentary Proceedings compiled by Hansard were not available to him when Sankalchand Sheth’s case (supra) was argued by him before this Court but have since been made available now and he was making his submission before us. There may be some force in the submission but in my view the submission is not adequate to necessitate a reconsideration of the majority view for two reasons. In the first place the assumed basis (which is now found to be wrong) for making the distinction between ‘appointment’ and ‘transfer’ in Article 217(1)(c) was merely used for refuting an argument of the original petitioner that since in Section 220(2), Proviso (c) of the Government of India Act, 1935 appointments to Federal Court were clubbed with the appointments “to another High Court” and since the Judge’s consent was necessary in both the cases the Court should read the corresponding provision of the Constitution to Article 217(1)(c) to mean that a process of the transfer of a Judge from one High Court to another involves a fresh appointment and in that connection it was said that the Government of India Act, 1935 did not contain any provision for a transfer of a Judge. Secondly, apart from that reason, several other reasons have been indicated in the judgment why a transfer of a Judge does not involve a fresh appointment, such as non-issuance of a fresh warrant of appointment, no consultation as contemplated under Article 217 taking place but only of the kind contemplated by Article 222(1), etc. The first reason does smack of formality but the second cannot be regarded as unsubstantial, for the nature of the two consultations is different and the fact that only that kind of consultation contemplated under Article 222(1) takes place emphasises the position that it is not a fresh appointment. In view of this position the second ground on which the reconsideration of the majority view is sought is of no avail.

640. Having regard to the aforesaid discussion, in my view, no case could be said to have been made out for reconsidering the decision of the majority in Sankalchand Sheth’s case (supra), according to which non-consensual transfers are within the purview of Article 222(1). The other submissions in support of the contention that ‘consent’ should be read into that Article as a matter of construction or that consent of the concerned Judge is necessary as a transfer involves fresh appointment, which were reiterated in brief before us, have all been dealt with and answered by the learned Judges who pronounced the majority view in Sankalchand Sheth’s case (supra). I am, therefore, in agreement with the majority view that non-consensual transfers are within the purview of Article 222(1).

641. Before parting with the decision in Sankalchand Sheth’s case (supra) I would like to refer to certain observations made by Chandrachud, J. in connection with policy transfers as I feel that they need some clarification and apropos those observations I would like to deal with and make my observations with regard to the two policies which appear to have been accepted in principle, though not fully formulated and formally declared by the Union Government in connection with the transfer of High Court Judges. In Sankalchand Sheth’s case (supra) a view has been expressed by Chandrachud, J. that the safeguard of effective consultation suggests that policy transfers on wholesale basis are outside the purview of Article 222(1) and in this behalf the pertinent observations made by him are as follows:

Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one sided governmental considerations are out-side the contemplation of our Constitution.” (vide p. 454 (of SCR) : (at p. 2347 of AIR)). The last sentence in these observations is likely to create a wrong impression that if large number of transfers are made pursuant to a general policy these would be outside the purview of Article 222(1) of the Constitution but that is not what is really intended to be conveyed. The emphasis clearly is on wholesale transfers without considering each individual case on its own merits being outside the purview of Article 222(1) and more so when such, wholesale or mass transfers are influenced by one-sided governmental considerations which would be outside the purview of the Article. In other words, it is clear that even if a transfer is effected pursuant to a general policy adopted by the Government the same must satisfy requirements of Article 222(1), that is to say, it must be in public interest and made after full and effective, consultation. Ordinarily no general policy will be adopted unless it clearly serves some public interest and hence when a transfer is stated to be pursuant to such general policy it will be a difficult task for the Judge concerned to establish that it has been made for extraneous considerations but all the same a transfer based on a general policy will have to satisfy the requirements of Article 222(1) and if extraneous considerations are established the same will have to be struck down.

642. In this context I would like to refer to one aspect which was debated at the Bar, whether before any such general policy is adopted by the Government any consultation with the Chief Justice of India is necessary or questions of policy are exclusively to be decided by the Government ? It is true that Article 222(1) merely refers to consultation of the Chief Justice of India on specific/individual proposals for transfer as and when these are made and nothing is mentioned therein as regards consultation with him on points such as whether and if so what policy or policies should be adopted for effecting transfer of Judges from one High Court to another. It is also true that ordinarily policy matters would be decided upon by the Government But propriety requires and perhaps smooth working thereof may necessitate consultation with the Chief Justice who is the highest administrative head of the country’s Judiciary especially as the policy or policies to be adopted are in relation to transfer of High Court Judges. But, as stated earlier, even after a general policy in the matter of transfers of High Court Judges is framed and adopted whenever a transfer is to be made in pursuance of such policy the proposal, before it culminates into an order, will have to satisfy the requirements of Article 222(1).

643. Coming to the two policies which the Union of India seems to have accepted in principle though not fully formulated by fixing the mechanism or modality of procedure, it may be stated that one such policy is to have one-third of the Puisne Judges in a High Court from outside the State — a policy which has been referred to in the Circular dated March 18, 1981 and the other is the policy to have Chief Justices of all the High Courts from outside — a policy that became the subject-matter of debate in Shri K.B.N. Singh’s case. Without going into the merits or demerits of either of them and without going into the question whether there are proper or justifiable grounds for adopting either of them, that is to say, whether either of them serves any public interest or not, I would like to deal with a couple of aspects touching these policies which I feel it is necessary to clarify at this stage. It was suggested at one stage during the arguments that individual selective transfers are prone to be punitive in character but once a general policy is adopted there will be no scope for raising a contention that the transfer made in pursuance thereof is a punitive transfer. In fact, the argument went to the length of equating individual selective transfers with punitive transfers and policy transfers as being always above board. Such an extreme contention is difficult to accept. It will not be correct to say that a policy transfer, that is to, say, a transfer based on or made in pursuance of a general policy would necessarily be non-punitive in character nor would it be correct to say that every selective transfer is necessarily punitive. Taking the policy of having One-third-Puisne Judges in a High Court from outside, it will be clear that in the absence of any mechanism or modality of procedure giving guidelines as to how that one-third complement will be chosen for implementing it, such a policy would obviously be fraught with the danger or vice of discrimination; further, if a vacancy arises in that complement of that High Court then filling it up in the absence of proper guidelines would again be arbitrary. Similarly, even the policy of having the Chief Justices of all the High Courts from outside stands the risk of being abused by the Executive in the absence of proper guidelines being provided in the matter of regulating which Chief Justice shall be posted in what particular High Court; this assumes significance in federal polity like ours. It is thus clear that a policy transfer without fixing the requisite mechanism or modality of procedure which ensures complete insulation against the Executive interference could be a punitive transfer in the sense of having been effected with some oblique motive. Even with proper mechanism or modality of procedure a transfer can be made for extraneous considerations and will be liable to be struck down if it is so established. But admittedly no mechanism or modality of procedure of any kind has been fixed or decided upon so far and, therefore, how can it be asserted that every policy transfer made in pursuance of either of these two policies would necessarily be above board? In other words, merely adopting a general policy, which is or may be broadly supportable for reasons of public interest, would not be sufficient to insulate transfers of High Court Judges against Executive interference unless adequate mechanism or modality of procedure in that behalf is also fixed and followed in practice. Conversely, a selective transfer in an appropriate case for strictly objective reasons and in public interest of general administration could be non-punitive. In other words, each case of transfer, whether based on a policy or a selective transfer, will have to be judged on the facts and circumstances of its own for deciding whether it is punitive in character in the sense of having been effected with some oblique motive or not.

644. Coming to the impugned Circular letter dated March 18, 1981 it is clear that the petitioners on the one hand and the con-testing respondents on the other are at great variance with each other on the true nature, content and effect thereof; whereas according to the petitioners the Circular letter seeks to effect, in substance and reality, a mass transfer of sitting Additional Judges as also of the proposed appointees based on a policy decision unilaterally taken by the Law Minister and/or the Union Government and in that behalf seeks to obtain their consent under threat, coercion and duress, according to the contesting respondents no such transfers are intended at all but the Circular letter merely seeks to obtain consent from sitting Additional Judges for their appointment as Permanent Judges of other High Courts on the expiry of their initial term or extended term and consent from the proposed appointees for their initial or first appointment to High Courts other than their home-State High Courts and the action proposed to be taken thereunder is for the purposes of Article 217 of the Constitution and no threat, coercion or duress is involved in obtaining such consent. The impugned Circular letter has already been set out verbatim at the commencement of this judgment and a careful analysis of the contents thereof brings out the following seven aspects very clearly : In the first place the action proposed in para 2 thereof (of obtaining consent) is being taken with a view to implement a policy suggested by several bodies and forums “to have one-third of the Judges of a High Court, as far as possible, from outside the State in which that High Court is situated” for “furthering national integration and combating narrow parochial tendencies bred by caste, kinship and other local links and affiliation”; secondly, the letter records that as no start could somehow be made in the past in that direction the feeling was strong, growing and justified that some effective steps should be taken very early in that behalf; thirdly, para 2, which specifies the action to be taken, is in two parts; (i) in relation to sitting Additional Judges in all the States of India (except North-eastern States), it seeks to obtain their consent “to be appointed” as Permanent Judges to High Courts in States other than their own and (ii) In relation to the proposed appointees (either from the Bar or services) for initial appointment (either as Additional or Permanent Judges) it seeks to obtain their consent for being “appointed to” in any other High Court in the country (meaning other than their home-State High Court); fourthly, in this behalf it also seeks from them their choice by naming three High Courts in order of preference to which they would prefer to go; fifthly, the sitting Additional Judges and the proposed appointees from whom such consent and preferences are sought are to be told clearly that furnishing of the consent or the indication of a preference does not imply any commitment on the part of the Government either in regard to their appointment or to accommodation in accordance with the preferences given; sixthly, the letter strikes a note of urgency and requests the addressees thereof to initiate action very early and after obtaining the written consent and preferences from the persons concerned to forward the same to the Law Minister within a fortnight of the receipt of the letter; lastly, the Circular letter has been addressed by the Law Minister to the Governor of Punjab and all Chief Ministers of the States (except North-eastern States) requesting them to obtain such consent and preferences from all Additional Judges as well as the proposed appointees, with merely a copy of the letter being sent to each of the Chief Justices of the concerned High Courts.

645. Counsel for the contesting respondents pointed out that when an Additional Judge is appointed under Article 224(1) his tenure is fixed by the warrant of his appointment and on the expiry of the period mentioned in the warrant he ceases to be a Judge of the High Court and he has no vested right either to be continued or to be made permanent and in either extending him for a further term as an Additional Judge or in making him permanent in the vacancy of a permanent post, a fresh appointment is involved by issuance of a fresh warrant under Article 217(1) and as such there is no question of any transfer being involved in such a case, while in the case of a proposed appointee (either from the Bar or services) when he is being initially appointed obviously there is no question of any transfer in his case either and it is from such persons that consent is being sought under para 2 of the Circular letter and the same is for ‘a fresh appointment’ in the case of the former and ‘an initial appointment’ in the case of the latter under Article 217(1) of the Constitution. Counsel further pointed out that para 2 of the Circular letter uses the expression “to be appointed” in the case of sitting Additional Judges as also in the case of proposed appointees and the word “transfer” has hot been used at all and as such counsel contended that the Circular letter does not deal with the topic of transfer of Judges at all. Reliance in this behalf is also placed on the Law Minister’s statement in Parliament made on 16th April, 1981 in response to the Calling Attention Motion by Shri Rashid Masood and other M. Ps. and the answers given by him to the questions put to him by several Members during the discussion that followed, wherein he clarified the position that consent from sitting Additional Judges was sought under the Circular letter for their fresh appointments under Article 217 and not for their transfers and Article 222 was not attracted at all. It was further contended that para 3 of the Circular letter merely clarified the legal and constitutional position that obtained even before the sending of the letter that there will be no commitment on the part of the Government either in regard to the appointment or in regard to the accommodation in accordance with preference given and that such clarification of the legal position was necessary lest a wrong impression was created that furnishing of consent or indication of preference would imply such a commitment as also to avoid any legal arguments based on the theory of promissory estoppel and no threat, coercion or duress could be inferred from the contents of para 3 of the Circular letter. The question is whether this is the true nature and effect of the Circular letter.

646. It is true that according to its dictionary meaning the word ‘transfer’ means ‘removal from one place or position to another’, but it is not such physical shifting of a person from one place to another with which the Court is concerned in the case; the Court is concerned with the concept of transfer contemplated in Article 222(1) of the Constitution which says : “The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to another High Court”. This clearly refers to the transfer of a person, who is already a Judge of a High Court. As stated earlier, para 2 of the Circular letter refers to two categories of persons, namely, sitting Additional Judges and the proposed appointees (either from the Bar or services) and it would be clear that in the case of the latter who are being initially appointed Judges, either as Additional or Permanent, to some High Court there would be no question of any transfer in their case as contemplated in Article 222(1). It is difficult to accept the petitioners contention that in regard to these proposed appointees recommended for their initial appointment the Circular letter seeks to obtain their consent for their transfer, though in being appointed to other High Courts they would within the dictionary meaning of that expression be shifted and perhaps uprooted from their usual place of work, namely, their home-State High Courts. The question really is whether in the case of the former category, namely, sitting Additional Judges whose consent is sought for ‘being appointed’ to High Courts other than their own High Courts a transfer is involved and whether the Circular letter in substance and reality effects their transfers as contended by the petitioners. In the earlier part of this judgment it has been pointed out that a valid classification subsists between proposed appointees who are being recommended for their initial appointments and sitting Additional Judges whose initial or extended term is about to expire. In the case of the former they have no right to be considered for the post of a High Court Judge nor have they, even after being recommended on completion of the consultative process by the three constitutional functionaries mentioned in Article 217(1), any right to be appointed and, therefore, have no remedy against their non-appointment but in the case of the latter the position is entirely different. It is true that under Article 224(1) read with Article 217(1) the tenure of an Additional Judge fixed by his warrant of appointment comes to an end at the expiry of the period mentioned in the warrant and he ceases to be a Judge of the High Court, but for reasons already discussed in the earlier part of this judgment he has a legitimate expectancy and an enforceable right not to be dropped illegally or at the whim or caprice of the appointing authority but to be considered for being continued as Additional Judge or made permanent in that High Court. The convention or practice and the undertaking taken from the member of the Bar at the time of his initial appointment make it clear that he has such enforceable right to be considered for being continued or made permanent in that very High Court. That is how Article 224(1) has All along been understood and worked. He is not in the same position as a proposed candidate for initial appointment. In substance and reality in extending his term or making him permanent in that High Court no “fresh appointment” is involved, except for the formality of issuing a fresh warrant of appointment and taking a fresh oath. If in the case of such sitting Additional Judge his consent is sought for being ‘appointed to’ another High Court it is virtually and in substance seeking his consent for his transfer from his own High Court to another High Court falling within the concept of transfer contemplated in Article 222(1). It is true that para 2 of the Circular letter uses the expression “to be appointed” but it is not the nomenclature or label used that would be decisive of the matter but one has to look to the substance and looked at the Circular from this angle it is clear that in so far as sitting Additional Judges are concerned their content is sought for transferring them from their own High Court to other High Courts and the attempt in substance is to transfer them under the guise of making fresh appointment on the expiry of their initial or extended term. Further, considered in the light of the historical background, there appears to be some force in the petitioners’ contention that the Circular letter is another attempt on the part of the Union Government this time to effect mass transfers of sitting Additional Judges, the previous attempt to effect mass transfers of Permanent Judges during the last Emergency having failed. (One such transfer was successfully challenged and all the transferred Judges, except those who were unwilling, were repatriated to their own High Courts.) This Court in Sankalchand Sheth’s case (supra) has laid down the safeguard of public interest and the stringent condition of full and effective consultation with the Chief Justice of India which are required to be observed be-fore the power of transfer under Article 222(1) can be exercised and the Circular letter appears to be an attempt to circumvent the safeguard and the stringent condition by resorting to transfers of sitting Additional Judges under the garb of making fresh appointments on the expiry of their initial or extended term.

647. Reliance on the Law Minister’s statement made in Parliament on 16th April, 1981 clarifying the position that consent from sitting Additional Judges is being sought under the Circular letter for their fresh ‘appointment’ and not for their transfers and the Article 222 was not attracted at all will be of no avail in view of the conclusion reached above that it is not a case of fresh appointment but in substance their consent is being sought for their transfer. This apart, the fact that the Circular letter was intended to effect transfers of sitting Additional Judges becomes amply clear from what transpired during the debate that followed the Calling Attention Motion of Shri Rashid Masood and other M. Ps. and particularly from admissions made by the Law Minister himself under stress of questions in the nature of cross-examination put to him by Members of Parliament. It will be pertinent to mention that the subject matter of the Calling Attention Motion moved by Shri Rashid Masood and other Members as a matter of urgent public importance is captioned in the relevant proceedings of Lok Sabha Debates as “Circular letter to Chief Ministers of States about the consent from Additional Judges for transfer to other High Courts”. This clearly suggests that even Members of Parliament regarded the Circular letter as dealing with the topic of obtaining consent from sitting Additional Judges for their transfer from their own High Courts to other High Courts but apart from what several Members of Parliament felt about it, even the Law Minister, while asserting that the Circular letter dealt with the subject of fresh appointments of sitting Additional Judges on the expiry of their initial term or extended term and not their transfer and the consent thereunder was merely sought for making their fresh appointments under Article 217(1), explained the genesis and reasons which prompted him to issue the Circular and in that behalf stated that the various complaints were pouring in about prejudiced attitudes bred by kinship and other local links and affiliations etc., that political links had also been mentioned in certain cases and various State authorities had expressed their reservations about the continuance of some Additional Judges and it was felt that in some cases of this kind if Additional Judges could be made permanent in other High Courts there could be no valid objections to such appointments as their service would then be outside the local setting in which they had the roots. Such a statement on the part of the Law Minister by way of explaining the genesis and reasons for the issuance of the Circular letter undoubtedly lends considerable force and support to the petitioners’ contention that furthering national integration and combatting parochial trends’ is merely a garb used and the real intention is to transfer such sitting Additional Judges who have become Unpalatable to the State authorities because of alleged political links obviously not to their liking; or whom the concerned State authorities have come to regard as black-sheep from their point of view. At one stage during the debate when the facts, that the Law Commission in its 80th Report had made a distinction between initial appointees and the sitting Additional Judges in the context of their recommendation of having one third of the Judges of the High Court from outside and that it had suggested that their recommendation should be implemented in the case of the former, were brought to the notice of Law Minister this is how the Law Minister reacted:

May be that according to him (Hon’ble Member who brought the aforesaid facts to his notice) the Additional Judges would not come within the purview of the initial appointment. Then I would put it in a different form. I have given the reason as to why we have to ask for the Additional Judges (consent) also. Things being what they are. I would like to ask the Hon’ble Member, when complaints come where it is not possible to convincingly prove, then, what should be done with such Additional Judges ? Are they to be dropped ? I take a safer approach, namely, if they are appointed elsewhere, then this allegation which persists could be avoided.

This statement clearly suggests that in regard to sitting Additional Judges against whom complaints are received but it is not possible to convincingly prove them the Law Minister dearly contemplated the shifting of such Judges elsewhere so as to avoid allegations being persisted against them and presumably for doing so an opportunity presents itself when their term is about to expire. Then follow two important sets of question and answer which put the matter beyond doubt that even the Law Minister admitted in terms that what is being done under the Circular is a transfer of Additional Judges. The following are the questions and answers:

SHRI SATISH AGGARWAL: “Excuse me, Mr. Law Minister. You have stated a particular situation, where there is evidence but not sufficient, what should be done : a transfer can be made. It is only applicable in cases which are ad hoc. But what about cases when complaints are there with regard to those who are permanent Judges ? That does not solve the problem. You are applying your stick only to those who nave finished a two or three years period.

SHRI P. SHIV SHANKAR: “I have never said ‘ad hoc’. Where the additional Judges are there, each complaint will have to be considered on its own merit and a decision could be either to drop a person based on evidence or to see if he could be transferred.

X X X X X SHRI BAPUSAHEB PARULEKAR : “You have stated: ‘I may add the it is not the intention of the Government to appoint all Additional Judges from outside the State’. What is the criteria ? You can victimise any person if this is the policy of the Government. Is it not ?

SHRI P. SHIV SHANKAR: “I can assure my friend, it is not a question of victimisation. As I said each case will be considered on its own merit. It is not the intention that everyone should be transferred. That is all. (Interruptions). Perhaps he is going back to the same ground on the question of sporadic transfer of Chief Justice and Judges and so on. The position is very simple. Supposing there is any material bearing on a particular case, that would be considered on its own merit. It is not the intention that everyone should be transferred. I think I have covered all the points raised.

It is significant that though in the first set of question and answer both the Hon’ble Member and the Law Minister have used the expression ‘transfer’ in the context of what is being done to the Additional Judges on receipt of complaints against them and evidence in respect thereof is not sufficient, in the second set the Hon’ble Member specifically used the expression ‘to appoint’ in the context of Additional Judges intended to be brought from outside but even then the Law Minister in his reply stated that “it is not the intention that everyone should be transferred”. This shows that under the stress of questions truth has come out that the Circular is intended to effect transfers of sitting Additional Judges from their own High Court to another High Court in respect of whom complaints have been received but evidence in support is insufficient and that will be done at the time of expiry of their initial or extended term. The reference to other portions of the Law Minister’s statement and answers given by him on the Floor of the House has been made with a view to ascertain the real intention behind the issuance of this Circular letter because it is the Law Minister alone, and not a Deputy Secretary in his department, who can depose about it and the Law Minister in spite of being impleaded eo nomine a party to the proceedings has chosen not to file his own affidavit in the case.

648. On the question whether the consent sought thereunder from the sitting Additional Judges a induced by threat, coercion or duress or not, regard will have to be had to four or five aspects about the Circular letter that emerge clearly on the record. In the first place instead of seeking their consent through the Chief Justices of the concerned High Courts, which would have been in keeping with decorum and dignity of the high office held by them, the Circular letter in utter impropriety requests the Executive Head (the Governor of Punjab and all Chief Ministers of the States) “to obtain from all the Additional Judges…their consent to be appointed as Permanent Judges in any other High Court” together with their order of preferences, which smacks of demonstrating the power of the Executive over the Judiciary. Secondly, the tenor of the letters in executive arrogance presumes that the consent sought will be forthcoming from all the sitting Additional Judges inasmuch as the possibility of consent not forthcoming from some or any of them has not been considered or dealt with in the letter. Thirdly, para 3 of the letter, by necessary implication, contains a threat to the Additional Judges that they would not be continued as Additional Judges or confirmed as Permanent Judges and may be dropped unless they furnish their consent inasmuch as without more it merely states that furnishing of consent as well as indication of the preferences does not imply any commitment on the part of the Government either in regard to their appointment or accommodation in accordance with the preferences given; such misgiving which naturally arises from this kind of a statement ought to have been removed by clearly indicating the consequences of non-furnishing of the consent. It ought to have been stated clearly and categorically that non-furnishing of the consent will not be held against any Additional Judge and will not come in his way of being continued or being made permanent and further that furnishing of consent by an Additional Judge will not enable him to steal a march over those who have either not furnished or refused to furnish their consent in the matter of making them permanent. Both these things were vital and ought to have been stated in order to remove all misgivings and omission to do so clearly leads to the inference that the statement in para 3 of the letter, by implication, contains a threat to the Additional Judge of the type indicated above. The explanation given on behalf of the contesting respondents that para 3 was by way of merely clarifying the legal and constitutional position obtaining in the matter even before the sending of the Circular letter, namely, that there was no commitment on the part of the Government to appoint every Additional Judge as a Permanent Judge and that it was necessary to make the legal and constitutional position clear lest a different impression was created as also to avoid any legal argument based on the theory of promissory estoppel is hardly convincing; for, if para 3 was inserted only with a view to clarify the legal and constitutional position it was all the more necessary to state the consequences of non-furnishing of the consent in the manner indicated above to remove all misgivings. Fourthly, the Circular letter is obviously intended to have adverse impact on the sitting Additional Judges’ right on the expiry of their initial term or extended term, — it being merely a right to be considered for being continued or made permanent. Fifthly, the timing of the Circular is significant in considering its effect and impact on the sitting Additional Judges; the Circular letter has been issued by the Law Minister on March 18, 1981 at about the time when politicians and persons occupying high positions had been indulging in a campaign of denigrating the higher Judiciary, treating every Court decision adverse to Government as a deliberate and motivated attack on the Executive. A Chief Minister of a prominent State had described it as the “Dictatorship of the Court” while a Cabinet Minister in the Central Government had bracketed the Judiciary with the opposition parties and had been complaining that they were not cooperating with the Government; the highest Executive Head at the center had prior to March 18, 1981 publicly stated : “The former Janta Regime had made a lot of appointments in the Judiciary on political basis…that a dilemma faced by the ruling party was whether these persons appointed on political basis in Judicial Services should be allowed to continue and if they are continued how can we expect justice from them ? What is their credibility ?” It is true that in this behalf the petitioners have relied upon extracts from Newspaper reports of such statements and utterances but when these have been made part of their pleadings by the petitioners (vide para 2 of Shri Tarkunde’s petition and para 43 (O) of Shri Gupta’s petition) a duty is cast on the contesting respondents to deal with the same in reply and from the counter-affidavits filed in reply by Shri Kankan on their behalf it will appear clear that there is no denial that such statements and utterances were made by the persons concerned. In reply to para 2 of Shri Tarkunde’s petition, Shri Kankan has merely averred that “the views stated to have been expressed by the Chief Minister of a State and a Cabinet Minister would have been their personal views and do not and could not have conveyed the policy of the Government”, while there is no specific reply to para 43 (O) of Shri Gupta’s petition at all but an omnibus general submission in regard to para 43 (H) to para 43 (Q) has been made by Shri Kankan by stating thus: “with regard to paras 43 (H) to 43 (Q) I submit that these paras are full of surmises and conjectures”. From this state of pleadings it will appear clear that there is no denial that the concerned Chief Minister and the Cabinet Minister and the highest Executive Head at the center had made the several statements and utterances attributed to them as quoted from the extracts of the Newspaper reports and at the highest Shri Kankan desired to suggest that these statements and utterances were their personal views and not of the Government It cannot be disputed that such statements and utterances from persons occupying high positions in the Government help create an atmosphere of fear-psychosis for the not-so-sterner stuff in the judiciary; secondly, even taking the assertion of Shri Kankan that these statements and utterances represented their personal views at its face value (which it is difficult to do) one cannot be sure when these personal views imperceptibly or un-obstructively become the views of the Government and form the basis of a Government policy, as has happened here, for, the Circular letter does reflect partly some of the views contained in these statements and utterances. The question is what impact the Circular letter will create on the minds of the sitting Additional Judges whose terms would be coming to an end on the expiry of the periods specified in their warrants in the light of the atmosphere of fear-psychosis created by such statements and utterances made by persons occupying high positions in the Government ? The answer is too obvious to be stated. Reading it as a whole and in the light of the aspects discussed above, the Circular letter clearly exudes an odor of executive dominance and arrogance intended to have coercive effect on the minds of the tilting Additional Judges by implying a threat to them that if they do not furnish their consent to be shifted elsewhere they will not be continued nor made permanent but would be dropped. The Circular letter, therefore, which seeks to obtain the consent of the sitting Additional Judges to their transfers from their own High Court to another High Court induced by threat, coercion or duress clearly amounts to Executive interference with the Judiciary and impinges on its independence and as such is illegal, unconstitutional and void and the consent if any either already obtained thereunder or that may be obtained, would be equally void.

649. Once the conclusion is reached that the Circular letter seeks to effect in substance and reality transfers of sitting Additional Judges from their own High Courts to other High Courts on the expiry of their initial term or extended term and the consent sought from them thereunder is for such transfer and not for their ‘fresh appointment’ as Permanent Judges) does not involve a the challenge to the same as being violative of Article 222(1) of the Constitution becomes quite apparent. It was sought to be urged at one stage that if on true construction of Article 224(1) the sitting Additional Judges during their tenure are outside the pale of transfer under Article 222(1) then the question of the impugned Circular being violative of Article 222(1) does not arise. It is difficult to accept this contention because even assuming that Article 224(1) is construed in the manner suggested the Circular aims at transferring the sitting Additional Judges not during their tenure but just on the expiry of their term and if their continuance as permanent Judges (and not as Additional Judges because the Circular talks of appointing them as permanent Judges of other High Courts, fresh appointment as held above, the question of challenge to the Circular as being violative of Article 222(1) very much survives. In Sankalchand Sheth’s case (supra) this Court took the view that full and effective consultation by the President with the Chief Justice of India under Article 222(1) of the Constitution implies that each individual case must be considered separately on the basis of its own facts and “policy transfers on a wholesale basis which leave no scope for considering each particular case and which are influenced by one sided Governmental considerations are outside the contemplation of our Constitution” (vide observations of Chandrachud, J. as he then was, at p. 454 (of SCR) : (at pp. 2347, 2348 of AIR) of the Report). The transfers of sitting Additional Judges contemplated by the Circular (for which their consent is sought thereunder) are based on the policy to have one third of the Judges of a High Court from outside without each individual case being considered on its own facts and merits and therefore such transfers based on policy accepted or adopted by the Law Minister and/or the Union Government would be outside the purview of Article 222(1). In any case, — and this is important — it cannot be disputed that by procuring the consent of the sitting Additional Judges for their transfers from their own High Court to another before undertaking any consultation with the Chief Justice of India clearly reduces the full and effective consultation contemplated under that Article to a mere formality, if not to a mockery, for, it is obvious that such consultation and the advice which Chief Justice will be tendering following upon such consultation will not be of any use or avail as the consent to such transfer shall have already been procured from the concerned Additional Judges. The consultation and the resultant advice of the Chief Justice will be robbed of its real efficacy in face of such pre-obtained consent. The Circular which has such effect is clearly violative of Article 222(1); in fact it will have to be regarded at having been issued mala fide for a collateral purpose namely to by-pass Article 222(1) and confront the Chief Justice of India with fait accompli when the proposal to transfer such Additional Judge would be forwarded to him and at such the same is illegal and unconstitutional and deserves to be struck down.

650. The next challenge to the impugned Circular letter based on Article 14 also teems to be well founded and the same is irrespective of whether the Circular letter deals with transfers of Additional Judges or their fresh appointments and the initial appointments of the proposed appointees. Briefly stated the contention is that in regard to the sitting Additional Judges it makes an invidious distinction between those who would be furnishing their consent and those who would not be doing so or would be refusing to furnish their consent inasmuch as the former would be at an advantage while the latter will suffer a disadvantage and even within the class of those who would be furnishing their consent it gives to the Government unfettered and un-guided power or discretion to pick and choose, that is, to select some for being shifted to High Courts other than their own while retain and appoint others in their own High Courts which power can be exercised either by way of punishment or by way of favouritism. It is further pointed but that the Circular letter will encourage an ignominous face amongst self-seeking Judges to look to the Government for appointment at Permanent Judges out of turn or select places which are centers of power. Counsel further contended that even in regard to the proposed appointees (either from the Bar or Services) recommended for their initial appointments, though no question whatsoever may arise in case of non-appointment, discrimination is bound to result in the case of those who are appointed and who have furnished their consent inasmuch as from amongst such consenting appointees the Government has unfettered and unguided power to select some for being appointed to other High Courts and to appoint others to their home-State High Courts. Thus discrimination is writ large on the face of the Circular letter and the seeds of destruction of judicial independence are inherent therein.

651. Dealing with the case of sitting Additional Judges first, it cannot be disputed that the Circular letter intends to confer advantage to those who would be furnishing their content and make those who would not be giving their consent or would be refusing to give their consent suffer a disadvantage. This petition emerges very clearly from what hat been stated by Shri Kankan in para 6 of his counter-affidavit filed in reply to Shri Iqbal Chagla’s petition. This is what he has categorically asserted : “It is not, however, the intention of the letter that a permanent or further appointment will be denied to a Judge only on the ground that he has not given his consent; in fact, a further appointment to an Additional Judge has recently been given even though he bad not given his consent…. By no stretch of construction op from the facts and circumstances existing can it be sought to be inferred that failure to give consent would necessarily involve an Additional Judge ceasing to be a Judge.” The first sentence clearly meant that the ground that an Additional Judge has not given his consent could along with other grounds be the basis of denying to him a permanent or a further appointment and this is put beyond doubt by the last sentence where it is stated that failure to give consent would not necessarily involve the dropping of an Additional Judge which means failure to give consent may involve the dropping of such Additional Judge. In other words, there is no doubt that failure to furnish consent under the Circular letter is bound to put the concerned Additional Judge to disadvantage of not being extended or not being made permanent or of being dropped altogether and correspondingly it confers some advantage on those who would be furnishing their consent That the Circular letter was not a preliminary step in the direction of collecting data and information from sitting Additional Judges which could be placed before the Chief Justice of India when the consultation process under Article 217(1) would be gone into, as has been now stated by Shri Kankan for the contesting respondents, but was and is intended to be acted upon forthwith by conferring an advantage on those who would be furnishing their consent is clearly borne out by the stand taken by Shri Kankan on behalf of the contesting respondents at the stage of the appeal preferred by them against the interim relief granted by the learned single Judge in Shri Iqbal Chagla’s writ petition; by the interim relief granted by the learned single Judge the contesting respondents were restrained by an injunction from implementing the Circular letter or from acting in any manner upon the consent if obtained from any person following on or arising from the said Circular letter and while challenging this order of interim relief as being erroneous and ought not to have been made at least on the ground of balance of convenience, Shri Kankan in para 3 of his affidavit dt. 23rd Apr., 1981 (filed in the Bombay High Court) asserted that the balance of convenience lay in refusing to grant an injunction rather than to grant one because it was claimed that persons who would be willing to give their consent to be appointed as Judges in High Courts other than their own should not be deprived of the chance of such appointment merely by reason of the petitioners’ having moved the Hon’ble Court questioning the validity of the Circular and that it would be against the public interest to delay or hold up appointment of persons as Judges to other High Courts by reason of pendency of the writ petition. It is thus clear that the contesting respondents were and are interested in forthwith acting upon the consent that would be obtained from the sitting Additional Judges under the Circular letter by giving them a chance in the matter of their appointments as Permanent Judges in preference to those who would not be furnishing their consent. The Circular letter thus makes invidious discrimination against those sitting Additional Judges who would not be furnishing their consent at they will suffer a disadvantage, while those who would be furnishing their consent will be at an advantage.

652. Secondly, the Circular letter seems to confer unfettered and unguided power on the Government to indulge in picking and choosing even within the class of those Additional Judges who shall have furnished their consent in the sense it will be up to the Government to select some from that class for being shifted to High Courts other than their own and to retain and appoint others in their own High Courts. In this behalf reliance has been placed upon the statement made by the Law Minister on the floor of the Parliament on April 16, 1981 to the effect that it is not the intention of the Government to appoint all Additional Judges to outside High Courts. This statement clearly suggests that the Government will be indulging in picking and choosing while appointing some Additional Judges to outside High Courts and retaining and appointing others in their own High Courts and in the absence of any guidelines the power can be exercised arbitrarily, either by way of punishment or by way of favouritism as pointed out by the petitioners.

653. As regards the proposed appointees (either from the Bar or service) recommended for their initial appointments, there will be no question of discrimination in the case of those who have cot been appointed at all but in the case of consenting appointees discrimination is bound to arise because of unfettered and unguided power or discretion vesting in the Government to pick and choose from amongst the consenting appointees, for, in their case also it will be up to the Government to decide and select some for being appointed to High Court other than their home-State High Courts and appoint the others in their home-State High Courts. Having regard to the aforesaid position it is abundantly clear that invidious discrimination is writ large on the face of the Circular letter and the same is clearly violative of Article 14 and as such unconstitutional and liable to be struck down.

654. In the result the impugned Circular letter, in my view, deserves to be struck down for the aforesaid three reasons.

655. Coming to the specific individual case of Shri S.N. Kumar (respondent No. 3 in Transfer Case No. 20 of 1981) it may be stated that the gravamen of the challenge it directed against the President’s action in dropping him outright on the expiry of his extended short term on June 6, 1981, i.e. during the pendency of the case before this Court and the action is challenged by the petitioners as well as by Shri S.N. Kumar as being violative of Article 224(1) as also Article 217(1) and hence illegal, unconstitutional and void. Principally, it is contended that the decision of the appointing authority not to continue but to drop him is vitiated by legal mala fides inasmuch as assuming that the case is governed by Article 217(1) there Has been no full or effective consultation between the President and the other constitutional functionaries particularly the Chief Justice of India as contemplated by that Article and therefore the said decision must be regarded as void and non est. The contesting respondents have joined issue by asserting that there was full and effective consultation as required by Article 217(1).

656. At the outset it may be stated that the petitioners bad pleaded (vide para 11 (w) of Shri Tarkunde’s petition) that the Chief Justice of Delhi High Court and the Chief Justice of India had recommended extension to three Judges (including Shri S.N. Kumar) for the full period of two years but there was a half-hearted and vague denial thereof by Shri Kankan in his Counter-Affidavit dated July 22, 1981 who merely stated that the aforesaid statement that both the Chief Justices had recommended extension to the concerned three Judges for two years was untrue and incorrect, without specifying whether, if not both, any one had done so and if so who had recommended it, and further if the recommendation was not for all the three Judges it was for whom and if not for two yean for what period ? A vague denial like this meant no denial at all. Shri S.N. Kumar in his Counter-Affidavit dated July 17, 1981 had also asserted that the Chief Justice of Delhi High Court had told him and a number of his colleagues that he (Chief Justice) had recommended the extension to the concerned three Judges (including himself), to which there was a reply from Shri V.N. Chaturvedi, Secretary (Justice) Government of India, in his Affidavit dated Aug. 25, 1981 to the effect that in the nature of things the Chief Justice of Delhi High Court could not have told Shri S.N. Kumar that he had made a recommendation in his (Shri S.N. Kumar’s) favour and Shri Chaturvedi further averred categorically : “I state that as a matter of fact there was real and effective consultation with the two Chief Justices and the President preferred the views of the Chief Justice of Delhi High Court which were not favourable for a further appointment of S.N. Kumar”. By implication it became obvious that there was complete divergence between the two Chief Justices in their views on the point of Shri S.N. Kumar’s continuance and that the Chief Justice of India had made a recommendation favourable to Shri S.N. Kumar. In such state of pleadings a question naturally arose whether this divergence has arisen on a consideration of the same or identical material by both the Chief Justices or otherwise ? Meanwhile, a Newspaper Report appearing in the issue of Hindustan Times of July 10, 1981 under the caption “Govt. overruled Chandrachud’s views”, not merely stated that, though the Chief Justice of India had dismissed the allegations against Shri S.N. Kumar as “unsubstantiated” and had recommended his confirmation, the Government had placed greater reliance on the views of the Chief Justice of Delhi High Court but went further and asserted, the reporter claiming to have had a look into the files, that certain correspondence between the Chief Justice of Delhi High Court and Union Law Minister had been marked for “Law Minister’s eyes” suggesting thereby that the same was meant for being kept away from the Chief Justice of India. On the aforesaid Newspaper Report being made a part of his pleading by Shri Tarkunde by annexing a copy thereof to his Rejoinder Affidavit dated August 3, 1981, Counsel for the petitioners repeatedly sought information from the learned Attorney General appearing for the Union of India on the point whether any part of the correspondence between the Chief Justice of Delhi High Court and the Union Law Minister had been kept away from the Chief Justice of India as, if that were true, it would directly vitiate the consultation contemplated by Article 217(1) but instead of making any statement furnishing the correct information on the point the learned Attorney General claimed privilege even in regard to such information. It was in these circumstances that this Court on Oct. 16, 1981 directed disclosure of relevant documents contained in the file relating to Shri S.N. Kumar concerning his short-term extension and eventual non-continuance for the purpose of ascertaining whether there has or has not been full, complete and effective consultation between the appointing authority on the one hand and the constitutional functionaries on the other, particularly the Chief Justice of India. On the question of privilege claimed by the contesting respondents in respect of the relevant files and documents my learned brother Bhagwati has dealt with and discussed the issue elaborately and exhaustively after referring to all the relevant authorities cited at the Bar and since I am agreeing with his view on the, point I am not dilating on it at all. I adopt all that he has stated on the issue in his judgment. The position needs to be made perfectly clear that the disclosure has been ordered by the Court only for the limited purpose mentioned above and not for deciding upon the merits or demerits of the grounds on which each of the Chief Justices made his own recommendation nor is the Court concerned with the truth or otherwise of the facts or materials on the basis of which each one acted. After the disclosure was made Counsel for Shri S.N. Kumar was understandably anxious to address the Court on the merits and demerits of the grounds which prompted the two Chief Justices to make their divergent recommendations and desired to vindicate his client’s honour and fair name before the Bar of this Court but we prevented him from doing so by categorically telling him that it was not the function of this Court to go into the merits or demerits of the grounds on truth or falsity of the material and that the disclosure had a limited purpose and if upon the scrutiny of the disclosed material the Court came to the conclusion that there was no full or effective consultation with the Chief Justice of India the appointing authority’s decision dropping his client may have to be quashed and the matter may have to be sent back to the appointing authority for fresh consideration and passing appropriate orders after undertaking the requisite consultation under Article 217(1) again and in that process fair-play will require that his client gets full opportunity to have his say in vindication of his honour and fair name. The main question, therefore, that arises for our consideration is whether it could be said on a perusal of disclosed documents that full and effective consultation as contemplated by Article 217(1) between the President on the one hand and the Constitutional functionaries on the other, particularly the Chief Justice of India, had preceded the impugned action of dropping Shri S.N. Kumar outright. It is clear that if the answer is in the affirmative the impugned action will have to be upheld, but if it is in the negative the same will have to be regarded as vitiated by legal mala fides and will have to be struck down.

657. Having regard to the decisions of this Court in Chandramouleshwar Prasad’s case (supra) and Sankalchand Sheth’s case (supra) it can now be regarded as well settled that consultation 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 OF at least a satisfactory solution and that 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 source and foundation of the final decision. It is equally well settled that consultation or deliberation is not complete or effective before the parties thereto make their respective points of views known to the other or others and discuss and examine the relative merits of their views. In the latter decision Chandrachud, J. (as he then was) has (at p. 453 of SCR) : (at p. 2347 of AIR)) of the Report observed:

It must therefore follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which, he can offer to the President the benefit of his considered opinion…. The fulfilment by the President of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other.

Again, Krishna Iyer, J. (for himself, Bhagwati and Fazal Ali, JJ.) has (at p. 495 of SCR) : (at p. 2379 of AIR) of the Report observed thus:

We consult a physician or a lawyer, an engineer or an architect and thereby we mean not casual but serious, deliberate seeking of informed advice, competent guidance and considered opinion. Necessarily all the materials in the possession of one who consults must be unreservedly placed before the consultee. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and 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 judgment can be calamitous.

(Emphasis supplied.) It is in the light of these well settled principles concerning consultation that the disclosed material will have to be scrutinised for deciding whether in the instant case there has been full and effective consultation between the President and the Chief Justice of India in the matter of the impugned decision that was taken in regard to Shri S.N. Kumar.

658. In all 13 documents comprising correspondence between the Chief Justice of Delhi High Court and the Union Law Minister, between the Chief Justice of India and the Union Law Minister and between the Chief Justice of Delhi High Court and the Chief Justice of India and some notings made by the Union Law Minister have been disclosed. A perusal of this material clearly shows that, though initially the non-recommendation of extension to Shri S.N. Kumar was thought of on four grounds: (a) his behaviour in Court, (b) his slow disposal, (c) his doubtful integrity based on unverified and uninvestigated complaints and (d) adverse IB reports, ultimately the decision to drop him, according to the Union Law Minister’s noting dated May 27, 1981, was based on and confined to the aspect concerning his ‘reputation and integrity’ and the correspondence clearly shows that the two Chief Justices held exactly divergent and opposite views regarding the said ground on which the final decision was based. The correspondence and notings bring out the following facts very clearly: (a) the Delhi Chief Justice’s view regarding Shri S.N. Kumar’s integrity was based on (i) serious complaints (both oral and in writing) received by him against Shri S.N. Kumar, including some received from the Union Law Minister himself and (ii) doubts expressed by some responsible Members of the Bar and some of his colleagues about his integrity; and while admitting that he had no investigating agency to find out whether the complaints were genuine or not, he informed the Union Law Minister that he could not recommend Shri S.N. Kumar’s continuance as in his view “reputation for integrity was just as important as the person actually being above board”; (b) the Chief Justice of India felt that the material mentioned by the Delhi Chief Justice for doubting Shri S.N. Kumar’s integrity was too vague and his independent inquiries from the Members of the Bar and the Bench of the Delhi High Court showed that Shri S.N. Kumar was a man of unquestioned integrity and justified a favourable recommendation for his continuance; (c) the Chief Justice of India by his letter of the March 14, 1981 had requested the Delhi Chief Justice to furnish him with “further details” and “concrete facts” in regard to the allegations against Shri S.N. Kumar and the Union Law Minister also, in view of the insistence of the Chief Justice of India, had by his letter of Apr. 15, 1981 called for such “concrete material” with his comments thereon from the Delhi Chief Justice so that the basis on which he had formed his view about Shri S.N. Kumar’s reputation for Integrity would be available to Government; (d) no “further details or concrete facts or material” at desired by the Chief Justice of India were furnished to him by the Delhi Chief Justice but the Delhi Chief Justice sent a lengthy letter of five pages dated May 7, 1981 to the Union Law Minister marked “Secret — fan personal attention only” which contained “further details and concrete materials” including references to specific cases (with suits numbers and titles) wherein according to him Shri S.N. Kumar’s integrity had been doubted; and (e) the Delhi Chief Justice had, both before and after the issuance of the aforesaid letter, during his discussions with the Law Minister requested the latter that his letters marked as above may be kept secret for his personal attention only, that is to say, these may be avoided from being brought to the notice of the Chief Justice of India and he also explained to him the reasons for the same and the Law Minister’s notings show that he responded to that request; in fact, by his letter of May 29, 1981 addressed to the Delhi Chief Justice, which happens to be last letter in the file, the Union Law Minister has placed on record the fact that, as per the request of the Delhi Chief Justice, letters marked “Secret for personal attention only”, including the letter of May 7, 1981, had been kept confidential from the Chief Justice of India and had not been shown to him. In other words, it is abundantly clear from the correspondence and notings that “further details” or “concrete facts of material” regarding Shri S.N. Kumar’s integrity, though specifically asked for by the Chief Justice of India, were not furnished to him and the letter dated May 7, 1981 which contained such further details and concrete facts or materials was deliberately kept out of his way.

659. Counsel for the contesting respondents, however, pointed out that after the Chief Justice of India had sent his letter of March 14, 1981 to the Delhi Chief Justice calling for “further details” and “concrete facts”, the two Chief Justices had a meeting on March 26, 1981 and an oral discussion had taken place between the two, and counsel contended that during this oral discussion the Delhi Chief Justice must have given these “further details” and “concrete facts or materials” to the Chief Justice of India and such inference becomes probable from the fact that long before the letter dated May 7, 1981 was disclosed under this Court’s order dated October 16, 1981, Shri S.N. Kumar has in his counter-affidavit dated July 17, 1981 made a reference among others to three suits being Summary Suits Nos. 1408/79, 1409/79 and 1417/79 which happen to be the very three suits wherein, according to Delhi Chief Justice, his integrity had become questionable and presumably he got particulars of these suits from the Chief Justice of India when the Chief Justice of India had a lengthy discussion with him about his work and other general matters. True, there was a meeting and oral discussion between the two on March 26, 1981 but it is impossible to accept the aforesaid contention of the Counsel that in the oral discussion “further details” and “concrete facts or material” must have been disclosed to the Chief Justice of India for three reasons. First, what transpired between them during the said discussion has been referred to and recorded by the Chief Justice of India in his letter of May 22, 1981 addressed to the Union Law Minister and this is what be has said in that letter: ‘The Chief Justice (meaning Delhi Chief Justice) met me on March 26, 1981, when he told me that Justice S.N. Kumar was very slow in his disposal and, that he doubted his integrity because even after Justice S.N. Kumar’s allocation of work changed from the Original Side to the Appellate Side he still continued to hear the part-heard cases on the Original Side”. As regards the latter aspect the Chief Justice of India had all along maintained that that conduct on Shri Kumar’s part by itself could not be regarded as blame-worthy in view of long standing practice obtaining in that behalf in Delhi High Court, and without more from that alone no inference of corruption or lack of integrity could be drawn. In other words, details of the complaints received against Shri S.N. Kumar or particulars of specific cases wherein Shri Kumar’s integrity had become suspect were not mentioned to the Chief Justice of India otherwise the Chief Justice of India would have referred to this aspect while recording what transpired between them. The Delhi Chief Justice’s letter to the Chief Justice of India on March 28, 1981, immediately following upon the meeting and oral discussion is of no use because beyond stating that he had an opportunity “to discuss this delicate matter with you” and further stating that as regards the complaints about Justice S.N. Kumar’s integrity and general conduct “the matter has already been discussed between us” no further details are recorded as to what transpired between them during their meeting. Even in his letter of even date (March 28, 1981) addressed to the Union Law Minister the Delhi Chief Justice merely records baldly thus– “I have since had an opportunity to discuss the entire matter in detail, with the Chief Justice of India” without mentioning what was discussed. Therefore, the only record of what was discussed between them is to be found in the letter of May 22, 1981 written by the Chief Justice of India to the Union Law Minister and as stated earlier this record of what transpired between mem in the meeting does not show that “further details” and “concrete facts and materials” in relation to complaints about lack of integrity of Shri S.N. Kumar were disclosed or discussed by the Delhi Chief Justice with the Chief Justice of India. Secondly, if during the oral discussion “further details” and “concrete facts or materials” which find a place in the letter of May 7, 1981 had been disclosed, discussed or placed before the Chief Justice of India it was simply pointiest for the Delhi Chief Justice to mark his letter dated May 7, 1981 ‘Secret –for personal attention only* and further to request Has Union Law Minister to keep it away from the Chief Justice of India and for the Union Law Minister to comply with such request Admittedly the letter was kept confidential from him and was not shown to him. The very fact that this letter dated May 7, 1981 was kept away from him at the insistence of the Delhi Chief Justice clearly shows that “further details” and “concrete facts or materials” asked for by the Chief Justice of India were not placed before him. Thirdly, just as the Chief Justice of India during his discussion with Shri S.N. Kumar put to him and got his explanation regarding aspects like his behaviour in Court, his slow disposal, his dealing with Original Side part-heard matters notwithstanding change in his assignment from the Original Side to Appellate Side etc., he would have also put to him and got his explanation about the “further details” and “concrete facts or materials” in regard to the allegations against his integrity, had he (the Chief Justice of India) known such “further details” and “concrete facts or materials” and this has not happened. The reliance on Shri S.N. Kumar’s counter-affidavit dated July 17, 1981. wherein a reference has been made by him to the three Summary Suits Nos. 1408, 1409 and 1417 of 1979 is of no avail, for, if his counter-affidavit in that behalf is carefully scrutinised it will appear clear that he has made a reference to these three suits along with six or seven other suits and all in connection with explaining the charge of impropriety on his part in taking up these part-heard matters even after his assignment had been changed from the Original Side to the Appellate Side and he explained it on the basis of a long standing practice obtaining in that behalf in Delhi High Court. He has not referred to these suits by way of explaining the allegations of corruption or behaviour raising doubt about his integrity. Any one who goes through the disclosed material carefully cannot fail to come to the conclusion that vital material in the shape of “further details” and “concrete facts” was deliberately kept away from the Chief Justice of India. The contention has, therefore, to be rejected.

660. If the reasons, which prompted the Delhi Chief Justice to keep away his communication of May 7, 1981 containing vital material in the shape of “further details” and “concrete facts” from the Chief Justice of India, are scrutinised and these have been Mentioned in the Law Minister’s noting of May 19, 1981 and his letter of May 29, 1981 — it will appear clear that apart from being vague they show a lack of proper perception on his part of the true nature of the obligations cast on him under the Constitution. In substance the sum total of his reasons comes to this: (i) that he did not want to be embarrassed by the likely disclosure of the contents of his communication dated May 7, 1981 to Shri S.N. Kumar as had happened in the case of his earlier communication dated 19th Feb., 1981 to the Chief Justice of India and (ii) that as he could not desist from expressing without fear or favour what he felt about certain matters (iii) relation to Shri S.N. Kumar, he communicated all that he wanted to say about him to the Union Law Minister through his letter of May 7, 1981 but at the same time because he was particular that his relations with Chief Justice of India should not be spoiled he desired that the contents of that communication should not be shown or made known to the Chief Justice of India. As regards (i), all that can be said is that it is surprising how he expected the Chief Justice of India not to put to Shri S.N. Kumar and seek his explanation on whatever he had come to know against him from any source including the Delhi Chief Justice: in fact, before supplying any material to the Union Law Minister he himself ought to have apprised Shri S.N. Kumar of all the material and all that he had heard about him and held discussion with him to ascertain his version thereon and then conveyed both sides of the picture to the other functionaries. As regards (ii), it must be first observed that full and effective consultation as contemplated by Article 217(1) required of him to place all relevant and material facts about Shri S.N. Kumar before the Chief Justice of India even at the cost of spoiling of his relations with the Chief Justice of India if it came to that and secondly, it was an unreal as well as erroneous apprehension on his part that a full disclosure of facts and material about Shri S.N. Kumar accompanied by his frank and honest opinion thereon would have spoiled his relations with the Chief Justice of India; in any event maintaining good and cordial relations with the Chief Justice of India was thoroughly irrelevant in the context of discharging a constitutional obligation. Having regard to the well settled principles concerning consultation referred to above it is clear that both the Union Law Minister as well as Delhi Chief Justice have failed to discharge their constitutional obligation in the matter of consultation contemplated under Article 217(1). In the first place, contrary to the principles laid down by this Court in Sankalchand Sheth’s case (supra) that the President must make the relevant data available to the Chief Justice of India for obtaining his considered opinion, the Union Law Minister did not forward the complaints which he had received against Shri S.N. Kumar to the Chief Justice of India (which he forwarded to the Delhi Chief Justice); secondly, the Delhi Chief Justice did not forward “further details” and “concrete facts or materials” touching Shri S.N. Kumar’s integrity to the Chief Justice of India in spite of the latter having specifically called for the same, and thirdly between them the Union Law Minister and the Delhi Chief Justice saw to it that the communication of May 7, 1981 (from the Delhi Chief Justice to the Union Law Minister) which contained “further details” and “concrete facts or material” in regard to the allegations of lack of integrity against Shri S.N. Kumar was kept confidential from the Chief Justice of India and was not shown to him. It is thus amply clear from the record that the facts which were taken into consideration by the Union Law Minister and the Delhi Chief Justice and which provided the basis to the appointing authority to arrive at the impugned decision were not placed before the Chief Justice of India, and, therefore, there was neither full nor effective – consultation between the President and the Chief Justice of India at required by Article 217(1) of the Constitution.

661. There it another aspect relating the procedure that has to be followed while undertaking such full and effective consultation namely, that the procedure must ensure fair play qua the concerned Judge. That the scope and ambit of consultation includes fair play qua the concerned Judge is clearly laid down in Sankalchand Sheth’s case (supra) in the context of question of the Judge’s transfer and the same position must obtain in regard to consultation under Article 217(1) in the context of the question of the continuance of an Additional Judge on the expiry of his initial or extended term, especially when it has been held that such an Additional Judge has a legitimate expectancy and a right to be considered foe continuance either for another term or as a Permanent Judge and the consideration of his case would suffer grave infirmity and illegality unless the consultation is again full and effective, that is to say, all facts concerning him are before all the functionaries undertaking the consultation including his version on facts allegedly adverse to him. In other words, the procedure to be followed in such consultation under Article 217(1) qua an Additional Judge must ensure fair play in relation to him. If a person has a right to be considered how can such right be effective unless he has an opportunity to meet or explain the alleged adverse material against him. Sans such opportunity his right to be considered will be illusory and unreal. The question is whether the procedure followed in Shri S.N. Kumar’s case ensured fair play qua him. It is clear from the record that “further details” and “concrete facts and material” in regard to the allegations of lack of integrity against Shri S.N. Kumar were not put to him nor was his explanation thereon sought; and there it no reason why Shri S.N. Kumar’s averment that the said material was never disclosed to bias nor put to him by anybody should not be accepted. The question of Chief Justice of India disclosing or putting to him the said material obviously does not arise, for he himself was not apprised of such “further details” and “concrete facts or materials” bat the same constituted the basis on which the Delhi Chief Justice and the Union Law Minister acted leading to the impugned decision and therefore it was up to the Delhi Chief Justice to have apprised Shri S.N. Kumar of such material by telling him that the same it likely to be held against him and by seeking his explanation or version thereon and it was up to the Union Law Minister to see to it that such procedure was followed through the Delhi Chief Justice before advising the appointing authority to act on the same. The record does not show that anything of the kind was done and in that sense also there was no full and effective consultation which vitiates the impugned decision. In short in Shri S.N. Kumar’s case it is quite clear that both these high constitutional functionaries, namely the Union Law Minister and the Delhi Chief Justice abdicated their constitutional responsibility or to use Justice Krishna Iyer’s language they utterly failed to discharge their “accountability to the justice constituency.” 662. The result is that the impugned decision against Shri S.N. Kumar is vitiated by legal mala fides and as such must be held to be void and non-est and his case must go back to the President for re-consideration and passing appropriate orders after the requisite consultation is undertaken afresh, with due observance of adequate fair-play.

WRIT PETITION NO. 274 OF 1981.

AND TRANSFERRED CASES NOS. 2, 6 AND 24 OF 1981.

663. In the above matters, with the resignation of Shri M.M. Ismail Chief Justice of Madras High Court which has become effective, this Court is only concerned with the challenge made to the transfer of Shri K.B.N. Singh, Chief Justice of Patna High Court to Madras High Court. Initially by a Writ Petition No. 2224 of 1981 filed in the Patna High Court the challenge was made by two lawyers, Shri D.N. Pandey and Shri Thakur Rampeti Sinha, the Secretary and President respectively of Bihar State Socialist Lawyers’ Association to which Shri K.B.N. Singh was impleaded as respondent No. 3 but after it was transferred to this Court and became the subject matter of Transfer Case No. 24 of 1981 at his request by this Court’s order dated Sep. 15, 1981 Shri K.B.N. Singh was transposed as co-petitioner and he has filed a self-contained comprehensive affidavit dated Sep. 16, 1981 making all the necessary averments and submissions in support of the challenge.

664. The brief facts concerning Shri K.B.N. Singh’s transfer are these: while he was practising as an advocate of the Patna High Court, Shri K.B.N. Singh was appointed as Judge of that High Court on Sep. 15, 1966; he was made permanent Judge of that High Court on March 21, 1968; he was first appointed Acting Chief Justice and later on Permanent Chief Justice of that Court by the Presidential Notification dated July 7, 1974 and he assumed charge of that office on July 19, 1976. For about 9 months, i.e. from January to Sep. 21, 1979 he functioned as an Acting Governor of State of Bihar whereafter he resumed work as the Chief Justice. By the impugned Notification dated Jan. 19, 1981 the President, after consultation with the Chief Justice of India, was pleased to transfer him as the Chief Justice of the High Court of Madras with effect from the day he would assume charge of his office. It is this transfer that is being challenged by Shri K.B.N. Singh and other petitioners on four or five grounds, namely, (a) Article 222(1) does not refer to a Chief Justice and hence the impugned transfer is outside its purview; (b) since the said Article properly construed covers only consensual transfers the impugned transfer, which is admittedly non-consensual, is bad in law; (c)it has not been effected in public interest; (d) it has been effected without full and effective consultation contemplated by Article 222(1) and (e) the procedure followed in effecting the same did not ensure fair-play in relation to him and the transfer is punitive in character. On behalf of the contesting respondents, amongst whom is included the Chief Justice of India who has been impleaded as party-respondent No. 2, the challenge is refuted under each of the heads. It is contended that the transfer of a Chief Justice falls within the purview of Article 222(1), that non-consensual transfers also fall within its scope and purview, that the impugned transfer has been effected in public interest, that there was full and effective consultation between the President and the Chief Justice of India as contemplated toy Article 222(1) and that the procedure followed in effecting the same was quite fair and that the impugned order had been made after giving Shri K.B.N. Singh full opportunity to place his point of view and difficulties before the Chief Justice and after these were objectively considered. It is categorically denied that it is a punitive transfer.

665. At the outset it may be stated that Counsel for Shri K.B.N. Singh and the other petitioners did not seriously press the contention that the transfer of a Chief Justice from one High Court to another was not within the purview of Article 222(1) for the reason that it was difficult to maintain that a Chief Justice was not included or could not fall within the expression “a Judge of a High Court”; similarly, having regard to the conclusion reached in the earlier part of the judgment that consent cannot be read in Article 222(1) and that the said Article covers non-consensual transfers it is unnecessary to deal with the second contention again at this stage. The real questions that arise for determination in regard to the transfer of Shri K.B.N. Singh, therefore, are whether the transfer has been ordered in public interest, whether there has been full and effective consultation between the President and the Chief Justice of India as required by Article 222(1) and whether the procedure that was followed ensured fair-play in the sense that Shri K.B.N. Singh was heard fully and his say was taken into consideration before effecting his transfer.

666. On the aspects of the scope and limits of the power to transfer a Judge under Article 222(1) and the built-in-safeguards to prevent its abuse this Court in Sankalchand Sheth’s case (supra) has clearly laid down that the said power is circumscribed by two important safeguards,’ namely, (1) the exercise of the power is conditioned by the requirements of public interest and cannot be exercised by way of punishment and (2) there must be a full, complete and effective consultation between the President and the Chief Justice of India before an order under that Article can be made. Chandrachud, J. (as he then was) has observed (at p. 456 of SCR) : (at p. 2349 of AIR) of the Report) thus:

Article 222(1) postulates fair play and contains built-in-safeguards in the interests of reasonableness, In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under the obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice. Thirdly, the Chief Justices owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President In the discharge of this constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed.

It is by reference to these principles that the question will have to be considered whether the impugned transfer is vitiated on any of the three grounds mentioned above.

667. Learned Counsel for the petitioners (including Shri K.B.N. Singh) urged that the three grounds or aspects really get intermixed and will have to be considered together in the light of the relevant material on record and according to counsel the material on record clearly shows that the impugned transfer stands vitiated by the infirmities indicated in each of the said grounds, Counsel contended that a mere recital in the Presidential Notification that the transfer has been ordered by the President “after consultation with the Chief Justice of India” is not enough and will not avail the contesting respondents and when the factum of full and effective consultation has been put in issue the respondents have to show demonstrably that there has been such full and effective consultation as contemplated by Article 222(1) and the material produced is lacking in this behalf particularly when the normal procedure was reversed in that the proposal for transfer in the instant case emanated from the Chief Justice of India and further there was nothing to show whether the communication received from the Chief Minister of Madras containing grounds of his objection to the proposed transfer had been placed before the Chief Justice of India, It was further contended that it has not been shown that the transfer is in public interest or what category of public interest is being served thereby. It was pointed out that there is a divergence between the transferring authority (the President) and the Chief Justice of India as to the reasons for which the impugned transfer has been made; whereas according to the transferring authority it was in pursuance of a policy of having all Chief Justices in every High Court from outside, according to the Chief Justice of India it was a selective transfer made in an appropriate case for strictly objective reasons, but the transfer could not be for the reasons of the policy because that policy had not been then and has not been even now finally formulated or adopted and if it is a selective transfer it has been by way of punishment and therefore bad in law. It was also contended that no reasons or grounds necessitating or justifying the transfer nor materials in support thereof were ever disclosed or discussed with Shri K.B.N. Singh by any one on behalf of the transferring authority or by the Chief Justice of India, that the advanced age and serious illness of his mother and his other difficulties were not properly considered and as such the procedure followed lacked fair-play and for all these reasons the impugned transfer deserves to be quashed or set aside.

668. In view of, the aforesaid contentions raised by the Counsel for the petitioners it will be necessary to indicate briefly the relevant material, on the record and ascertain what facts or aspects emerge clearly therefrom so as to adjudicate upon the validity or otherwise of the grounds of attack levelled against the impugned transfer. The entire relevant material requiring analysis and consideration consists of: (a) Self-contained comprehensive affidavit dated Sep. 16, 1981 of Shri K.B.N. Singh filed after he was transposed as a co-petitioner containing all the relevant averments and submissions in support of the challenge; (b) Counter-affidavit dated Sep. 24, 1981 of Shri Kankan filed on behalf of the Union of India; (c) Rejoinder-Affidavit dated Sep. 28, 1981 of Shri K.B.N. Singh in reply to Shri Kankan’s counter-affidavit; (d) Counter-affidavit dated Sep. 29, 1981 of the Chief Justice of India, respondent No. 2; (e) Rejoinder-affidavit dated Oct. 16, 1981 by Shri K.B.N. Singh in reply to the counter-affidavit of Chief Justice of India; (f) Relevant correspondence between the Chief Justice of India on the one hand and the Union Law Minister and the Prime Minister on the other and between the Chief Minister of Madras and the Union Law Minister contained in a file pertaining to the impugned transfer disclosed by the Union Government pursuant to this Court’s order dated Nov. 2, 1981; (g) Relevant nothings in File No. 50/6/ 80-Jus pertaining to the appointment of Chief Justices of Delhi High Court and Andhra Pradesh High Court in the context of the proposed general policy of having all Chief Justices in various High Courts from outside also disclosed pursuant to this Court’s order dated Nov. 18, 1981.

669. Reading items (f) and (g) together the following facts or aspects emerge very clearly on the record:

(1) a general policy to have Chief Justices of all the High Courts from outside was being evolved by the Union Government, who had almost decided to accept the basic principles underlying it but bad not finally formulated or adopted the same because the mechanism or modality of procedure had yet to be decided upon and fixed and the nothings in File No. 50/6/80-Jus clearly show that the appointments of the two Acting Chief Justices as Permanent Chief Justices of Delhi High Court and Andhra Pradesh High Court were made on the understanding that they will be liable to be transferred “if eventually a decision is taken that every Chief Justice must come from outside”;

(2) that the Government’s view in regard to such policy was put across to the Chief Justice of India but the Chief Justice of India was “firmly opposed to a wholesale transfer of the Chief Justices of the High Courts” and had stated, “I take the view, which I have expressed from time to time, that such transfers may be made in appropriate cases for strictly objective reasons.” (vide letter dated Dec. 7, 1980 from the Chief Justice of India to the Union Law Minister).

670. Reading the correspondence at item (f) above, the following additional facts or aspects emerge clearly:

(3) that transfers of some of the Chief Justices had been engaging the attention of the Chief Justice of India for the past few months, and he had made personal inquiries in this behalf and bad met several lawyers, and Judges of the concerned High Courts and on the basis of the data which he had collected and which he had considered with the greatest objectivity he had suggested transfers of certain Chief Justices including that of Shri K.B.N. Singh (vide letter dated December 7, 1980);

(4) that initially on December 7, 1980, the recommendation was to transfer ‘Shri K.B.N. Singh to Rajasthan High Court to take the place of Shri K.D. Sharma, Acting Chief Justice there, who was proposed to be transferred at the Chief Justice of the Kerala High Court, but after the Union Law Minister had pointed out certain difficulties in the chain of the connected transfers, the Chief Justice of India gave a fresh thought to the problem and by about December 20, 1980 in supersession of his previous proposals the Chief Justice of India recommended that Shri M.M. Ismail Chief Justice of the Madras High Court should be transferred as the Chief Justice of the Kerala High Court and Shri K.B.N. Singh should be transferred as the Chief Justice of the Madras High Court;

(5) that these suggested transfers including that of Shri K.B.N. Singh, apart from being discussed in the correspondence were also discussed orally in meetings and over telephone by and between the Chief Justice of India on the one hand and the Union Law Minister and the Prime Minister on the other an inference arising from the correspondence at item (f) itself.

671. Reading items (a) to (e) above, and particularly the self-contained comprehensive affidavit of Shri K.B.N. Singh, counter-affidavit of the Chief Justice of India and rejoinder-affidavit of Shri K.B.N. Singh in reply thereto together and proceeding on the basis of points of convergence only and excluding or ignoring the points of divergence between them arising from their respective affidavits, the following additional facts or aspects emerge very clearly:

(6) that much prior to his suggesting the transfer of Shri K.B.N. Singh from Patna to Rajasthan High Court on Dec. 7, 1980, the Chief Justice of India had paid a visit to Patna High Court in Feb., 1980 after disclosing to Shri K.B.N. Singh the purpose of his visit and had during that visit met on Feb. 24, 25 and 26, 1980 the Hon’ble Judges of that High Court and the Members of that Bar individually, the Members of the Advocates’ Association collectively and the Judges of the District Court at Patna and held discussions with them, and on his objective assessment of the situation and the data collected he concluded that dissatisfactory working conditions obtained in the High Court;

(7) that in regard to the proposal to transfer Shri K.B.N. Singh from Patna to Madras High Court, Shri K.B.N. Singh and the Chief Justice of India had discussions with each other on two occasions –one on the 5th Jan., 1980 over phone and the other on Jan. 8, 1981 at the residence of the Chief Justice of India. What transpired between the two on these two occasions is very material and again leaving points of serious divergence and proceeding on the points of broad convergence between the two it can safely be stated that this is what transpired between them: On Jan. 5, 1981 the Chief Justice of India informed Shri K.B.N. Singh over phone that it was proposed to transfer Shri M. M. Ismail to Kerala and that he (Shri K.B.N. Singh) may have to go to Madras; on further query as to the reason for it, the Chief Justice of India referred to Government policy but further specifically conveyed to him that it was proposed to transfer Shri M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place; during the telephonic talk Shri K.B.N. Singh told the Chief Justice of India that his mother was seriously ill and bed-ridden and was not in a position to move out of Patna and accompany him to Madras and further told him that if his transfer was insisted upon he would prefer to resign whereupon the Chief Justice of India requested him not to act in haste and to give the matter a close thought; the Chief Justice of India also added that he (Chief Justice) was making a note of the personal difficulty mentioned by him and that it will have to be taken into consideration before a final decision was taken; the Chief Justice of India also requested him to go over to Delhi to discuss the question of his transfer. During the meeting that took place at the residence of the Chief Justice of India on 8th Jan., 1981 at about 7.30 p. m. the proposed transfer was further discussed and when during the discussion the question of his mother’s advanced age and illness cropped up, the Chief Justice of India told him that he was unable to agree with his view on the matter as there were other dependable persons in his family who could look after his mother, that in any case his brother Shri S. B. N. Singh,, who was practising in the High Court, was quite capable of looking after his mother, to which Shri K.B.N. Singh replied that his mother had a special attachment to him and that he could not leave her to the care of his brother and other members of the family; during the discussion Shri K.B.N. Singh told the Chief Justice of India that it was possible that baseless complaints, which were the bane of Bihar, might have been made to him, and if so, he would like to remove any wrong impression that might have been created, whereupon the Chief Justice of India told him that he never went by baseless complaints and he did not believe that his (Shri K.B.N. Singh’s) conduct was blame-worthy but that if he wanted to explain any matter, which according to him, had created dissatisfaction about the working of the High Court, he was free to do so; further, during the discussion the Chief Justice of India assured him that he did not hold that he (Shri K.B.N. Singh) himself was to blame but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. It may be stated that Shri K.B.N. Singh in his rejoinder-affidavit has admitted that during the discussion the Chief Justice of India did mention to him that certain persons were exploiting their proximity to him and that there was misunderstanding and dissatisfaction in the High Court;

(8) the Chief Justice of India has in terms stated on oath that there was full and effective consultation between him and the President of India (meaning the President acting on advice of Council of Ministers) on the question of Shri K.B.N. Singh’s transfer from Patna to Madras and that every relevant aspect of that question was discussed by him fully with the President (acting as such) both before and after he had proposed the transfer and that every relevant circumstance, including the personal difficulty mentioned by Shri K.B.N. Singh was considered by him carefully and objectively before coming to the conclusion that he should be transferred to Madras; he has further stated that the paramount consideration in the impugned transfer was public interest and that it was not by way of any punishment at all and that he came to the conclusion on a dispassionate assessment of the relevant facts and circumstances, including the language difficulty involved, that Shri K.B.N. Singh was suited for being transferred to Madras High Court and that it was necessary so to transfer him. The Union of India through the counter-affidavit of Shri Kankan has denied that the impugned order was passed without effective consultation between the President of India (meaning acting on the advice of Council of Ministers) and the Chief Justice of India and asserted that relevant considerations were taken into account by the President (acting as above) and that the impugned transfer has been made only in public interest and is not punitive in character.

672. To the aforesaid facts or aspects that emerge clearly from the relevant materials on the record two more facts will have to be added as having come on record through the statements made by the learned Solicitor-General in answer to pointed queries made by the Court to elicit requisite information and such a course was adopted by the Court with a view to avoid burdening the record with additional filet containing the notings which were, however, produced for Court’s inspection and these facts are:

(9) that pursuant to the executive instructions contained in the 1972 Memorandum dealing with the procedure to be adopted in connection with the appointment and transfer of Judges of High Courts the Union Law Minister had ascertained the views of the concerned Chief Ministers, namely, the Chief Minister of Madras, the Chief Minister of Kerala and the Chief Minister of Bihar on 3rd, 4th and 6th January, 1981 respectively, in the matter of the proposed transfers;

(10) that the effective decision on the impugned transfer was taken by the Prime Minister on 9th January, 1981 whereafter the necessary and relevant papers were forwarded to the President of India and the impugned Notification was issued on 19th January, 1981.

673. At the outset, I would like to observe that a needless controversy was raised as to whether the impugned transfer has been a policy transfer (i.e. a transfer pursuant to the policy of having Chief Justices of all the High Courts from outside) or a selective transfer and a great deal of confusion was added to it by the statement which the learned Solicitor-General appearing on behalf of the Union of India was instructed to make during the hearing. As discussed and explained in the earlier part of this judgment it cannot be accepted as an invariably correct proposition that a policy transfer would always be non-punitive in character or that a selective transfer would necessarily be a punitive transfer. It has been pointed out earlier that a policy to have one-third of the Puisne Judges of a High Court from outside, in the absence of any mechanism or modality of procedure giving guidelines as to how that one-third number will be chosen for implementing it, would obviously be fraught with the vice of discrimination; similarly even the policy of having the Chief Justices of all the High Courts from outside stands the risk of being abused by the Executive in the absence of proper guidelines being provided in the matter of regulating which Chief Justice will be posted in what particular High Court A policy transfer, therefore, without fixing the requisite mechanism or modality of procedure that ensures complete insulation against executive interference, could be a punitive transfer in the sense of having been effected with some oblique motive whereas a selective transfer in an appropriate case for strictly objective reasons and in public interest could be non-punitive, with the result that each case of transfer, whether based on a policy or a selective transfer, will have to be judged on the facts and circumstances of its own for deciding whether it is punitive in character in the sense of having been effected with some oblique motive or not. In the instant case, having regard to the facts mentioned at Nos. 1 and 2 above, the impugned transfer must be regarded as a selective transfer and not based on the policy in the contemplation of the Union Government, notwithstanding the reference to ‘Government Policy’ made by the Chief Justice of India during his telephonic talk with Shri K.B.N. Singh on Jan. 5, 1981. Since the impugned transfer order in the ultimate analysis is of the transferring authority (the President) this Court wanted to know from the learned Solicitor General as to what were the reasons which prompted the transferring authority to pass the impugned order and therefore, a clarification was invited, but the statement that was made by him on Nov. 12, 1981, of course, under instructions from proper quarters, instead of clarifying the position made it more puzzling. The statement in substance was that the Chief Justice of India had suggested certain transfers, including the impugned transfer, in pursuance of his own view that transfers should be made in appropriate cases strictly for objective reasons but the Government had acceded to the transfers proposed by him as “(1) it was felt that not agreeing to these transfers may be construed as though the Government is departing from the view of having Chief Justices from outside; (2) the policy aspect could still be pressed into service later”. The statement gives the impression that the transferring authority agreed to the transfers because it did not want to depart from its view of having Chief Justices from outside but at the same time it categorically states that it was felt that the policy could be pressed into service later; the second part of the statement clearly suggests that the policy, which had not been till then clearly formulated, could be and was to be pressed into service later meaning thereby that the instant transfers were not in pursuance of the policy. Perhaps what is sought to be conveyed is that each one of the instant transfers was a selective transfer appropriately made strictly for objective reasons and justified by reasons for which the Chief Justice of India had recommended them but at the same time they indirectly helped the Government in achieving the same result which would have been achieved had the transfers been made in pursuance of the policy which the Government intended to have. That this was intended to be conveyed by the statement of Nov. 12, 1981 has been made clear by the learned Solicitor General later on, for, in his written note filed before this Court on Nov. 18, 1981, he has made the following categorical statement: “The impugned transfer, though not in pursuance of a policy decision, yet is a step forward which is consistent with the view of appointing Chief Justices from outside. The impugned transfer order, is, however, valid in that it satisfies the requirements of Article 222”. In other words, even as a selective transfer the Union Government found it justified for reasons given by the Chief Justice of India and valid under Article 222(1) but at the same time accepting his advice and recommendation amounted to taking a step forward in the direction of their intended policy. But, even if it were assumed at the highest that the two parties to the consultation (the Transferring Authority and the Chief Justice of India) had different reasons for agreeing to the ultimate result this cannot vitiate the consultation contemplated by Article 222(1), for, consultation, as has been pointed out by this Court in Sankalchand Sheth’s case (supra), requires the parties thereto to make their respective points of view known to each other and discuss and examine the relative merits of their views and as has been put aptly by Krishna Iyer, J. at page 496 of the report “Consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur”. But, apart from this aspect of the matter it seems sufficiently clear that the impugned transfer has been a selective transfer in the instant case and it will have to be decided whether it properly falls within Article 222(1), the same having been made after observing the safeguards of public interest and effective consultation and after following the procedure that ensured fair play.

674. The main question that arises in the case is whether the impugned transfer, being a selective transfer, has been really made in public interest or by way of punishment. In this behalf Counsel for Shri K.B.N. Singh has raised a two fold contention which has to be squarely dealt with. In the first place it has been urged that merely asserting that the said transfer has been made in public interest without categorising the public interest served thereby would be of no avail; and secondly, it is clear on record that during his visit to Patna in Feb., 1980 the Chief Justice of India had collected some data and information which showed that certain persons were exploiting their proximity to Shri K.B.N. Singh and this had created considerable misunderstanding and dissatisfaction in the working of the High Court which seems to have necessitated or justified Shri K.B.N. Singh’s transfer and this certainly implies some reflection on Shri K.B.N. Singh’s behaviour and the inference is unescapable that the transfer is by way of punishment and that too is made without disclosing the data or particulars to him amounting to unfair play. It is not possible to accept either of these two contentions for the reasons which I will presently indicate. It is not correct to say that the contesting respondents have been merely asserting baldly that the impugned transfer has been made in public interest without categorising the public interest served thereby. Actually two categories of public interest have been indicated by the Chief Justice of India in his counter-affidavit; so far as the shifting, of Shri K.B.N. Singh from Patna High Court is concerned the reason indicated is that certain persons were exploiting their proximity to Shri K.B.N. Singh which had created considerable misunderstanding and dissatisfaction in the working of the High Court and surely remedying dissatisfactory working conditions in a High Court serves one kind of high public interest; and so far as his posting at Madras High Court is concerned, the Chief Justice of India felt that it would be in fitness of things that an experienced and senior Chief Justice like Shri K.B.N. Singh be posted as the Chief Justice of one of the premier High Courts in the country. It is difficult to countenance any suggestion that either of ‘ these considerations which weighed with the Chief Justice of India does not serve public interest The first contention, therefore, must be rejected. Coming to the punishment aspect strenuously pressed by Counsel for Shri K.B.N. Singh I would like to observe that it will not be correct to draw an inference of the concerned Judge’s connivance or complicity in every case where persons close to him exploit their proximity to him while handling their matters in the High Court and in the absence of any connivance or complicity on his part such exploitation of close proximity would not imply any reflection on the Judge concerned. It is conceivable that undesirable activities are indulged in without his knowledge or consent — nay even against his wishes and sometimes despite counter measures adopted by him, and yet such exploitation of close proximity and the undesirable activities would spoil the atmosphere and lead to dissatisfactory working conditions in the High Court. In such a case if the atmosphere has to be improved and dissatisfactory working conditions have to be remedied it may become inevitable to transfer the concerned Judge without any blame attaching to him whatsoever; it is obvious that such a transfer will not carry any reflection on him. Further if the data or information, which leads to the discovery of dissatisfactory working conditions in the High court were also to indicate the concerned judge’s connivance or complicity in the exploitation then only the question of putting the same to him will arise but not otherwise. The instant case seems to be of that type, for, during his discussion with Shri K.B.N. Singh the chief Justice of India had repeatedly told that it was not his practice to take into account any baseless complaints, that he did not believe that his (Shri K.B.N. Singh’s) conduct was blameworthy in any manner and even when he mentioned this particular aspect about certain persons exploiting their proximity to him which had led to needless misunderstanding and dissatisfactory working conditions in the High Court he specifically assured him that he was not to blame for it no responsible for it No material appears to have been placed before Chief Justice of India by anyone even remotely suggesting that there was any connivance or complicity on the part of Shri K.B.N. Singh in the matter of exploitation of proximity leading to dissatisfactory working conditions in Patna High Court and there is no reason why me statement of the Chief Justice of India that Shri K.B.N. Singh was not responsible nor was to blame for it should not be accepted. In the absence of any connivance or complicity on his part in the matter of the exploitation, no reflection on Shri K.B.N. Singh is implied simply by reason of his transfer, which must be regarded as having been made, with a view to remedying the dissatisfactory working conditions in that High Court and no unfair play was involved in the procedure followed by the Chief Justice of India. In the circumstances it is clear that the impugned transfer has been in public interest and not by way of punishment.

675. On the question whether there has been full and effective consultation between the transferring authority (the President) and the Chief Justice of India it is true that a mere recital in the impugned Notification dated 19th Jan., 1981 about such consultation will not be of much avail especially when the factum of such full and effective consultation has been put in issue but here the contesting respondents’ case on that aspect does not rest merely on the recital to be found in the impugned Notification but they have produced sufficient material on record to show that there was full and effective consultation as contemplated by Article 222(1) before the impugned order was made. On the question as to whether there was consultation between the transferring authority on the one hand and the Chief Justice of India on the other and if so, what transpired during such consultation Shri K.B.N. Singh obviously has no personal knowledge and one will have to consider what one or both the parties to the consultative process have to say on the matter. It is well known that in writ proceedings the affidavits, counter-affidavits and rejoinder-affidavits filed by the parties constitute not merely their pleadings but also partake of the character of evidence in the case and it is from this angle mat the counter-affidavits filed on behalf of the contesting respondents, particularly that of the Chief Justice of India, a party to the consultative process, will have to be examined. Keeping the recital about the consultation with him that is to be found in the impugned Notification aside, there is a positive statement on oath made by the Chief Justice of India in his counter-affidavit dated September 29, 1981 that there was full and effective consultation between him and the President of India on the question of Shri K.B.N. Singh’s transfer from Patna to Madras and that every relevant aspect of that question, which would include the language difficulty involved at well at the personal difficulty of Shri K.B.N. Singh, was discussed by him fully with the President both before and after he had proposed the transfer and it is obvious that this statement of the Chief Justice of India partakes of the character of the evidence seeking to prove the factum and contents of the consultation. Far from there being anything on record which may detract from this averment there is positive other material on record to corroborate the same. The correspondence file disclosed by the Union Government clearly shows that the question of Shri K.B.N. Singh’s transfer was discussed and considered fully by and between the Chief Justice of India on the one hand and the Union Law Minister and the Prime Minister representing the transferring authority on the other not merely through correspondence but also orally in meetings and over telephone. Presumably basing himself on this correspondence file Shri Kankan in his counter-affidavit dated September 24, 1981 has denied that the impugned order was passed without effective consultation between the Chief Justice of India and the President of India (of course meaning the President as tile constitutional head acting on the advice of Council of Ministers) and has further asserted mat the relevant considerations were taken into consideration by the President (acting as such). It was argued that the data collected by the Chief Justice of India during his visit to Patna High Court in February, 1980 does not seem to have been placed before either the Union Law Minister or the Prime Minister but such an argument has to be rejected because the Chief Justice of India’s letter dated December 7, 1980 to the Union Law Minister, wherein the reference to the collection of such data by the Chief Justice of India as a result of his discussion with several lawyers and judges of the concerned High Courts and to his having considered the same with greatest objectivity has been made, itself states that the same was written “in furtherance of the discussion which both of them had on the previous day i.e. on December 6, 1980, on many an important matter concerning the High Courts. It was also argued that the statement of the Chief Justice of India in his counter-affidavit that he had discussed the question of impugned transfer with the President of India is vague inasmuch as it has not been clarified as to with whom from the side of the transferring authority he had these discussions, whether with the Union Law Minister or with the Prime Minister or with the President himself personally; this argument has also to be rejected, for the relevant correspondence disclosed by the Union Government clearly shows that the Chief Justice of India had these discussions about the impugned transfer both with the Union Law Minister and the Prime Minister and neither the Chief Justice of India nor Shri Kankan has suggested that the Chief Justice of India had discussed the question personally with the President of India. When the correspondence indicates clearly the two functionaries from the side of the transferring authority with whom the Chief Justice of India had discussions and there being no whisper either from the Chief Justice of India or from Shri Kankan that there were personal discussions with the President, it is ridiculous to suggest that the statement of the Chief Justice of India in that behalf is vague. With this material on record I did not appreciate the necessity or desirability of any clarificatory statement coming from the President that the issue was never discussed by the Chief Justice of India with him personally. What is more, it is surprising that in face of such correspondence showing discussion on the subject with the Union Law Minister the Solicitor General should have been instructed to make a statement which he did on November 12, 1981 to the effect “the Chief Justice of India mentioned to the Law Minister about his proposal to transfer Shri K.B.N. Singh”. The twist given in the statement that the Solicitor-General was instructed to make cannot escape this Court’s attention. Why was it necessary ? Be that as it may the material on record clearly shows that the impugned transfer was fully discussed by the Chief Justice of India with the Union Law Minister and the Prime Minister. It was also faintly argued that the last discussion between the Chief Justice of India and Shri K.B.N. Singh having taken place in the evening at about 7.30 p.m. on 8th Jan., 1981, the matter could not have been discussed further between the Chief Justice of India and the transferring authority before the effective and final decision was taken by the Prime Minister which is said to have been done by her on 9th Jan., 1981. The argument is merely required to be stated to be rejected, for even after the last discussion between the Chief Justice of India and Shri K.B.N. Singh was over there was ample time and opportunity for the Chief Justice of India to put across all that transpired between him and Shri K.B.N. Singh together with his reaction thereon either to the Union Law Minister or the Prime Minister or to both orally either in a meeting or on the telephone before the final and effective decision on the impugned transfer was taken by the Prime Minister. From the material produced on record, therefore, it is abundantly clear that there was full and effective consultation between the transferring authority on the one hand and the Chief Justice’ of India on the other in regard to the impugned transfer as contemplated by Article 222(1) before the effective decision thereon was taken, and if the consultation has been full and effective as contemplated by Article 222(1), as is shown by the material produced on record, the contention that the normal procedure ought not to have been reversed and the proposal should have emanated from the President and not from the Chief Justice of India as is the case here loses its significance. Moreover, there is no hard and fast rule as to from whom a proposal for transfer should emanate.

676. On the last aspect as to whether the procedure followed by the Chief Justice of India ensured fair play in relation to Shri K.B.N. Singh or not the material on record clearly shows that the Chief Justice of India had discussed all the relevant aspects concerning the impugned transfer with Shri K.B.N. Singh including his personal difficulty pertaining to his mother’s advanced age and serious illness. That the Chief Justice of India took a different view about it does not mean that any unfair play was involved. After all in his view public interest out-weighed the considerations of personal difficulty as well as the language difficulty which were put before him. As discussed earlier there being no charge nor any imputation against Shri K.B.N. Singh there was no question of giving him an opportunity to meet any. It is thus clear that the procedure that was followed ensured complete fair play qua Shri K.B.N. Singh.

677. It was next contended by Counsel for K.B.N. Singh that the Executive Instructions in Para 12 of the Memorandum of 1972, containing the procedure to be adopted in connection with transfers of High Court Judges issued by the Central Government, in the matter of consultation or ascertainment of the views of the Chief Ministers of the States involved in a transfer had not been followed in this case. The contention was, however, not pressed when the learned Solicitor-General after consulting the relevant files, made a statement at the Bar that in the instant case the Union Law Minister had consulted and/or ascertained the views of the Chief Ministers of Tamil Nadu, Kerala and Bihar on 3rd, 4th and 6th January, 1981 respectively in the matter of the proposed transfers. Further, in my view the question whether the Tamil Nadu Chief Minister’s letter pointing out language difficulties was actually placed before the Chief Justice of India or not would not be material if the Chief Justice of India was apprised of the grounds of objection based on language difficulty and he had considered them and the material shows that the Chief Justice of India had taken into consideration the objections based on language difficulty.

678. Counsel for Shri K.B.N. Singh in the last resort faintly urged that simultaneously with the passing of the impugned order the provisions of Article 222(2) ought to have been complied with and since no order fixing compensatory allowance to Shri K.B.N. Singh was passed upon his transfer the impugned transfer order would be invalid. It is impossible to accept such a contention, for, Article 222(2) does not provide that the order fixing compensatory allowance to the transferee Judge has to be issued simultaneously along with the transfer order; all that it provides is that when a Judge has been or is transferred after complying with the requirements of Sub-article (1) he shall, during the period he serves as a Judge of the other High Court, be entitled to receive, in addition to his salary, such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. It is obvious that such an order fixing the compensatory allowance could follow and would have fallowed in the instant case within reasonable time but here the occasion to make such order got postponed because of the stay of transfer that was ordered by this Court.

679. In the result it is clear that the impugned transfer must be held to be a valid transfer under Article 222(1) of the Constitution.

680. Before parting with these cases I would like to place on record my sense of appreciation and gratitude to all the learned. Counsel who have rendered great assistance to the Court by arguing their respective points with exceptional ability and skill. I have always held the view that the quality of a judgment rendered by a Court varies in direct proportion to the quality of assistance received by it from counsel appearing before it and whatever little I have been able to do in these cases it is mainly due to the excellent assistance received from counsel and I thank them. At the same time I cannot help keeping on record a feeling of uneasiness which I entertained during the hearing of Shri K.B.N. Singh’s case because of the manner in which that case was conducted by the contesting respondents through the learned Solicitor General, for which I hasten to add, that the Solicitor General is not at all responsible, though on occasions he was required to do some tight-rope walking, obviously under instructions. On more occasions than one I was left in doubt whether they were really interested in having the transfer order upheld. The statement which the Solicitor General was instructed to make on November 12, 1981 in which a twist was given suggesting, contrary to the documentary record, that the Chief Justice of India had, instead of “discussing” the proposal of transfer, “mentioned” the same to the Law Minister, cannot be otherwise explained. 1 have already mentioned that I have failed to appreciate the desirability or necessity of the statement made on behalf of the President of India disowning the “personal discussion” with the Chief Justice of India on the issue of transfer, especially when the latter had not raised a whisper about such personal discussion. After all is said and done, it most be observed that while acting administratively the attitude and behaviour of the Chief Justice of India was befitting the paterfamilias of the Judiciary. The way he dealt with the cases of Shri S.N. Kumar and Shri K.B.N. Singh has been objective and judicious — by refusing to rely on unconfirmed reports, rumours or gossip in the case of the former, and by following a procedure that ensured fair play in the case of the latter.

681. The other aspect, I would like to refer is the manner in which a section of the Press has behaved in this case. I am constrained to observe that a section of the Press while reporting the proceedings of this Court in this case seems to have, without fully realising the scope and purpose of the disclosure ordered by the Court, exceeded its limits of fair reporting and fair comment by discussing the merits and demerits of the grounds on which recommendations were made concerning the Judges or the truth or falsity of the disclosed material; assuming that this Court was intending to adjudicate on the merits or demerits of the grounds of the recommendations made or on truth or falsity of the materials even then how could the Press before this Court has finally adjudicated upon the issues involved, pronounce its verdict –which it almost did — on the high constitutional functionaries involved by holding a trial by Press? The disclosure, which be same necessary in the highest public interest of administration of justice — for seeing that injustice was not perpetrated and justice was meted out to high judicial functionaries under the Constitution, was not intended for being used for such purpose. Such behaviour of a section of the Press has been most distressing and has unnecessarily affected the image of judiciary and the high constitutional functionaries involved.

682. In conclusion I would pass the Following order:

(1) Writ Petitions in Transferred Cases Nos. 19-22 of 1981 are allowed.

(2) The impugned Circular letter dated March 18, 1981 is quashed and struck down as impinging on judicial independence and as being violative of Articles. 222(1) and 14.

(3) In future extensions to sitting Additional Judges should normally be for two years and no extension to any Additional Judge for less than a year be ever granted.

(4) The decision to drop Shri S.N. Kumar is quashed and his case is sent back to the President for reconsideration and passing appropriate orders after the requisite consultation is undertaken afresh, with due observance of adequate fair play.

(5) Since Shri K.B.N. Singh’s transfer is held to be valid, Writ Petition No. 274 of 1981 and those in transferred Cases Nos. 2, 6 and 24 of 1981 are dismissed.

(6) Each party will bear its own costs in these cases.

Desai, J.

683. March 18, 1981 till law courts and lawyers in their present form and structure survive, would be remembered as a day that raised a storm of controversy leading to a spate of writ petitions in different High Courts in the country. The Law Minister of the Government of India selected that fateful day for issuing a circular forwarded it to the Chief Ministers of all States and the Governor of Punjab requesting them to obtain the consent of Additional Judges working in the High Court in their respective States with preference limited to three stations, for being appointed as permanent judges in High Court other than the High Court in which they are, at present, appointed and functioning. A similar consent was also to be obtained from those who may be recommended in future for appointment as judges of the High Court.

684. It appears that the first salvo was fired by Shri S.P. Gupta, Advocate practising in the Allahabad High Court who filed a writ petition in the Allahabad. High Court impleading President of India, Union of India, Chief Justice of India, Chief Justice of Allahabad High Court and Governor of State as respondents praying for a writ, direction or order in the nature of mandamus directing the President to appoint judges of the High Court in accordance with the constitutional scheme etc. There was also a prayer for a direction to appoint three named judges as permanent judges but this prayer was not pressed. This petition was filed, it appears, on the very day on which the circular was issued. After it was admitted, the petition was twice amended with the leave of the Court, the first order being dated May 1, 1981 and the second being July 20, 1981. Respondent 1, president of India, Respondent 3, Chief Justice of India and Respondent 5, Governor of Uttar Pradesh were subsequently dropped and their names from the array of respondents were deleted, This petition stood transferred to this Court by the order dated May 1, 1981, and it, was registered as Transferred Case No. 19 of 1981.

685. After the issue of the impugned circular dated March 18, 1981, some events occurred which may be briefly noticed. The initial term of appointment of three additional judges of Delhi High Court, Mr. O.N. Vohra, Mr. S.N. Kumar and Mr. S.B. Wad expired on Mar. 6, 1981, and each of them was appointed as an additional judge for a period of three months, This short-term extension presumably provoked Shri J.L. Kalra and some others, practising advocates, to file Writ Petition No, 636 of 1981 on Mar. 26, 1981, in the High Court of Delhi impleading Union of India as the sole respondent. A number of prayers have been made in this petition, one which deserves mention is that a direction be issued that Shri N.N. Goswami, Shri Sultan Singh and Shri O.N. Vohra, three additional judges of the High Court of Delhi be appointed as permanent Judges and a further direction that the term of Shri S.N. Kumar and Shri S.B. Wad, additional judges functioning in the same Court be extended for a period of two years. By an order made by this Court on May 1, 1981. this writ petition stood transferred to this Court and is registered as Transferred Case No. 21 of 1981.

686. As a sequel to the issuance of the impugned circular dated Mar, 18, 1981 a special general meeting of the Advocates Association of Western India was held at Bombay on Apr. 3, 1981, where a resolution was adopted questioning the propriety of obtaining the consent of additional judges to be appointed as permanent judges in other High Courts in advance and further resolved to lodge a strong protest with the Union of India. A similar resolution appears to be adopted by the Bombay Bar Association at its Extraordinary General Meeting held on Apr. 7, 1981. Ultimately Shri Iqbal M. Chagla and three other advocates filed a Writ Petition No. 527/81 in the High Court of Bombay questioning inter alia that the circular issued by the Law Minister on March 18, 1981 be declared ultra vires and void and as a consequence, consent, if any given, and consequent action, if any, taken, be declared null and void. An injunction was sought restraining the respondents from implementing the impugned circular and ad interim relief in terms of this prayer was also sought. The respondents impleaded were the Law Minister, Union of India and ten additional judges of Bombay High Court. This petition was admitted and rule nisi was issued and ad interim in Junction was granted. This led to filing of an appeal by Union of India before a Division Bench of the Bombay High Court. Subsequently by an order of this Court, this case stood transferred to this Court under Article 139A and is registered as Transferred Case No, 22 of 1981.

687. Shri V.M. Tarkunde, former Sludge of Bombay High Court and Senior Advocate practising in the Supreme-Court, General Secretary of the Citizens for Democracy and President of the People’s Union for Civil Liberties filed Writ Petition No. 882 of 1981 in the High Court of Delhi on April 22, 1981, impleading initially Union of India as the sole respondent, it appears that subsequently the Law Minister and one Mr. P.K. Kathpalia, Additional Secretary, Department of Justice were impleaded as respondents 2 and 3 respectively. The petitioner also filed CMP. No.. 13425/81 requesting this Court to direct that Mr. Justice O.N. Vohra and Mr. Justice S.N. Kumar be impleaded as respondents. CMP. was allowed by the order dated July 7, 1981. Shri O.N. Vohra and Shri S.N. Kumar, Additional Judges of Delhi High Court who were given extension for three months commencing from March 6, 1981. to June 5, 1981, were impleaded as respondents 4 and 5. Of the two additional judges so impleaded, respondent 5 Shri S.N. Kumar has participated in the proceedings and has appeared through his counsel Shri R.K. Garg. The principal question raised was that independence of judiciary being the basic and fundamental feature of our Constitution, any action of the executive which would be subversive of the independence of judiciary, must be declared unconstitutional. It was stated that the circular of the Law Minister of Mar, 18, 1981, directing the Chief Ministers of States to obtain consent of an additional judge for being posted as permanent judge in other High Court giving him an option to disclose his preference limited to three stations and a similar consent to be obtained in advance from a person to be recommended for appointment as a judge of the High Court is subversive of the independence of Judiciary. It was submitted that the extension of the term’ of an additional judge or his appointment as a permanent judge cannot be left to the unfettered discretion of the executive because it would make a serious inroad on the independence of judiciary. Another important contention raised in the petition was whether short-term extension of additional Judges is permissible under Article 224 and whether it is open to the executive to appoint additional judges leaving vacancies in the permanent strength of the High Court judges unfilled, even though the arrears are mounting. A specific contention was raised with specific reference to the position of the Delhi High Court alleging that it would be contrary to the constitutional intendment underlying Article 218 to maintain half the strength of the Delhi High Court as additional judges, This petition under an order made by this Court stood transferred to this Court under Article 139A and is registered as Transferred Case No. 20 of 1981.

688. In all these petitions, Mr. K.C. Kankan. Deputy Secretary in the Department of Justice, Ministry of Law, Justice and Company Affairs has filed his counter-affidavit with regard to the circular of the Law Minister and other contentions. It was stated that the present government is vitally concerned in maintaining the independence of judiciary and in the administration of Justice according to the rule of law. With regard to the circular dated March 18, 1981, issued by the Law Minister, it was submitted that the circular is not meant to be covert method to transfer judges from one High Court to other High Court circumventing the requirements of Article 222(1) or ratio of the decision in Union of India v. S.H. Sheth . It was in terms stated that the failure of the judge to give consent would not be a relevant factor while considering him for appointment as a permanent judge or for a second term as an additional judge, as the case may be. It was stated that the appointment of additional judges for two years or for shorter period has been done after following the constitutional provision in this regard and keeping the public interest in view. With regard to the second appointment of an additional judge after the expiry of the first term, it was stated that it is a fresh appointment and fresh warrant has to be issued and judge has to take a fresh oath as prescribed and, therefore, the full round of consultation under Article 217 will have to be gone through. Reference was made to the guidelines prescribed for the disposal of cases by a High Court Judge and these guidelines provide a yardstick for calculating the number of additional judges. It is also stated that the strength of the Delhi High Court was raised in June, 1979. and a proposal of the Chief Justice of Delhi High Court for sanction of two extra judges was approved. Short term appointments were sought to be justified on the plea that there were valid reasons for such short term appointments and privilege was claimed against disclosure of papers relating to appointment of additional Judges. It was specifically denied that the circular was meant to be utilised for transfer of judges circumventing the requirements of Article 222. It was stated that complaints have been received about the prejudicial attitude of certain judges including additional judges, bred by kinship and other local links and affiliations. Political links have also been mentioned in certain cases and various state authorities have expressed their reservations about continuance of some additional judges. These matters were generally mentioned to the constitutional authorities. There is an averment in the affidavit that it is not the intention of the Government to appoint every additional judge in another State. This is specifically referred to because a serious controversy developed that the Government wants to arm itself with power to pick and choose Judges for transfer outside the State and that this would provide an opportunity for extending political patronage so that Judges, to avoid harassment of being appointed to a High Court outside their State may lean towards the Government for their survival. Explaining the reason d’etre it was stated that the purpose behind the circular dated March 18, 1981, was to take steps in the direction of having outsider in the High Court to help in the process of national integration and also to improve the functioning of various High Courts by having in each High Court the presence of a number of Judges who would not be swayed by local considerations or affected by the issues which arouse passions and emotions. Support was drawn for this statement from the 14th Report of the Law Commission and from the latest 80th Report of the Law Commission presided over by Mr. H.R. Khanna and from the study group set up by the Administrative Reforms Commission. It was in terms admitted that the additional judge is not a judge on probation. It was stated that short term appointments are made pending the final decision, a thing which would appear objectionable in view of the mandate of Article 224. Power was claimed by the executive to appoint any additional judge for any shorter period as may be considered justified. If conceded, this can lead to a logical absurdity, namely, from day to day, the situation very difficult even to conceive in any form of political society one may think of. However, a mitigating circumstance was pleaded that additional judges for shorter periods have been appointed in special circumstances and only when there are exceptional factors necessitating appointments for shorter periods. In respect of Shri O.N. Vohra and Shri S.N. Kumar, it was stated that the short-term appointment was made to enable the Government to take a final view having regard to the complaints that have been received against some of them after consultation with the constitutional authorities. The statement in the petition that the Chief Justice of Delhi High Court and Chief Justice of India both had recommended the appointment of these two judges for a further period of two years was denied. It appears that the Chief Justice of Delhi High Court had not recommended Shri S.N. Kumar for appointment as additional judge after expiry of his initial term of two years on Mar. 6, 1981. The incorrect averment in the petition has found its place in an order made by the Vacation Judge on June 6, 1981. At the appropriate place, it will be pointed out that Chief Justice of Delhi High Court had, for his reasons, declined to recommend appointment of Shri S.N. Kumar as an additional judge on the expiry of his first terms on Mar. 6, 1981.

689. As almost identical contentions have been raised by Mr. Kankan in the various affidavits filed by him in every case, it is not necessary to recapitulate them here except recalling one averment made in his counter affidavit filed on July 6, 1981, in reply to the petition filed by Shri Iqbal M. Chagla and others in Bombay High Court because it was the subject-matter of debate. In para 9 (VII) it is stated that the data collected pursuant to the circular issued by the Law Minister would be made available to the Chief Justice of India, Chief Justice of the High Court concerned and the Governor of the State. The submission was that the circular was issued for data collection is a subterfuge resorted to, to provide an innocent cloak to a dagger aimed at independence of judiciary.

690. It may be briefly mentioned here that Writ petition No. 274/81 filed in this Court and Transferred cases Nos. 2, 6 and 24/81 were listed to be heard along with the present batch of cases with a view to avoiding. the repetition of the arguments on points common to both sets of cases. In the first group of cases the question of construction of Articles 217, 224 and other connected articles prominently figured in the context of circular of the Law Minister dated Mar. 18. 1981, seeking consent of additional judges for being appointed as permanent judges in other High Courts and the short term extensions given to Shri. O.N. Vohra, Shri, S.N. Kumar and Shri S.B. Wad. additional judges of Delhi High Court and the final non-appointment of Shri O.N. Vohra and Shri S.N. Kumar. The submission was that the circular of the Law Minister manifests a covert attempt to transfer additional judges from one High Court to other High Court without consulting the Chief Justice of India as required by Article 222(1) and thereby ‘circumventing the majority decision in Mr. Sheth’s case. The central theme was the scope, ambit and content of consultation which the President must have with the three constitutional functionaries set out in Article 217(1). In the second group of cases, the question arose in the context of transfer of Shri K.B.N. Singh, Chief Justice of Patna High Court as Chief Justice of Madras High Court consequent upon the transfer of Shri M.M. Ismail. Chief Justice of Madras High Court as Chief Justice of Kerala High Court by Presidential Notification dated Jan. 19, 1981, in exercise of the power conferred upon him by Article 222. The controversy centered down the scope, ambit and content of consultation that the president must have with the Chief Justice of India before exercising the power to transfer under Article 222, Thus, the scope, ambit and content of consultation under Article 217 as also one of Article 222 which, as Mr. Seervai stated was more or less the same though the different facets on which consultation must be focused may differ in the case of transfer and in the case of appointment, figured prominently in both the groups of cases. The parameters of scope, ambit and content of consultation both under Arts. 217(1), 222 and 224, were drawn On a wide canvas to be tested on the touchstone of independence of judiciary being the fighting faith and fundamental and basic feature of the Constitution. It was stated that if the consultation itself is to provide a reliable safeguard against arbitrary and naked exercise of power against judiciary, the procedure of consultation must be so extensive as to cover all aspects of the matter and it must be made so firm and rigid that any contravention or transgression of it would be treated as mala fide or subversive of independence of judiciary and the decision can be corrected by judicial review. Therefore, at the outset it is necessary to be properly informed as to the concept of independence of judiciary as set out in the Constitution,

691. The entire gamut of arguments revolved principally round the construction of Arts, 217 and 224 in one batch of petitions and Article 222 In another batch but the canvas was spread wide covering various other Articles of the Constitution, analogous provisions in previous Government of India Acts, similar provisions in other democratic constitutions and reports of Law Commission. Rival constructions canvassed centered upon the pivotal assumption that independence of judiciary is a basic and fundamental feature of the Constitution which has its genesis in the power of judicial review which enables the court to declare executive and legislative actions ultra vires the Constitution. In this connection we are not starting on a clean slate as the contention in this very form and for an avowed object was widely canvassed in S.H. Sheth v. Union of India (1975) 17 Guj LR 1017 (FB) and in Union of India v. S.H. Sheth AIR 1977 6C 2328. Some additional dimensions were added to this basic concept of independence of judiciary while both the parties vied with each other as in the past (see statement of Shri S.V. Gupta then Attorney General in Mr. Sheth’s case), on proclaiming their commitment to independence of judiciary though in its scope and content and approach there was a marked divergence.

692. Petitioners in both the batches of petitions passionately asserted that independence of judiciary is the basic postulate of our Constitution and any interpretation of the articles in the fasciculus of articles relating to judiciary must keep it inviolate. The construction, asserted the petitioners which would make any inroad on the absolute independence of judiciary must be rejected because the entire edifice of Parliamentary democracy as envisioned in our Constitution rests on the firm structural foundation of the independence of judiciary. It was asserted that Parliamentary democracy of Westminster model with a written Constitution and with division of functions amongst the three branches of the Government, the executive the legislature and the judiciary postulate that where a transgression of power takes place there must be a body of independent persons with power to correct deviations, so that all constitutional functionaries act within the framework of the power and perform duties as envisaged by the Constitution. This role, it was averred, rightly belongs and has been unreservedly assigned to the judiciary ‘as a sentinel on qui vive’ and in order that this branch which has a duty to check excess or transgression of or arbitrary exercise of power, functioned ‘without fear or favour and solely committed ‘to the upholding of the Constitution must be free wholly and unreservedly from the other more powerful organs of the Indian polity, namely, the executive and the legislature.

693. Developing this submission reference was made to various provisions of the Constitution and the interpretation put on some of those provisions by the decisions of this Court. It was urged that independence of judiciary has been put beyond the pale of controversy in the Court but this Court must spell out its contours and limits, the fringes and the horizon, so that wherever an intrusion takes place or an erosion is threatened it can be checkmated by judicial review.

694. A reference to some of the important provisions of the Constitution would bear repetition though they have been enumerated at length in Mr. Sheth’s case, Taking cue from the Act of Settlement of the United Kingdom and Section 220(2) of the Government of India Act. 1935, whereby tenure of judges was altered from King’s pleasure to one during good behaviour, in U. K. and India respectively, Article 217(1) and Article 124(2) ensure tenure during good behaviour up to the age of 62 and 65 years respectively to the High Court and Supreme Court Judges. Article 202(3)(d) and Article 112(3)(i) provide that expenditure in respect of the salaries and allowances of High Court judges and the salaries and allowances and pensions payable to Judges of the Supreme Court of India is charged on the consolidated fund of each State and of India respectively. Article 203(1) and Article 113(1) ensure that so much of the estimates as relate to the expenditure charged upon the Consolidated Fund of a State and Consolidated Fund of India shall not be submitted to the vote of the legislative assembly and the Parliament respectively. High Court Judges and the Judges of the Supreme Court are assured salaries guaranteed by the Constitution as set out in Schedule II by virtue of Article 221(1) and Article 125(1) and a further assurance is held out by the proviso to Article 220 and Article 125 that the same shall not be varied to the disadvantage of a judge after his appointment. Article 211 in respect of High Court Judges and Article 124 in respect of Judges of the Supreme Court as also of a High Court immunise them in discharge of their duties from discussion in the legislature of a State and parliament save and except where an address to the President is presented praying for removal of the Judge as provided in Article 124(4) and (5). Article 215 and Article 129 make the High Court and Supreme Court respectively a Court of Record with power of such Court including the power to punish for contempt of itself. The power to appoint officers and servants of the High Court and officers and servants of the Supreme Court is conferred on the Chief Justice of the State under Article 229 and upon the Chief Justice of India under Article 148 and conditions of service of the officers and servants of High Court as well as officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of the High Court or by the Chief Justice of India, as the case may be, but in each case this power is to be exercised subject to the provisions of any law made by the legislature of any State or the Parliament, as the case may be, and in case of rules relating to salaries, allowances, leave or pension would require in case of High Court the approval of the Governor of the State and in case of Supreme Court approval of the President.

695. By Articles 233 and 235 members of the subordinate judiciary are brought under the control of the High Court and except for initial entry and final exit they are under the direct control of the High Court.

696. In cases dealing with subordinate judiciary by as catena of decision commencing from State of West Bengal v. N.N. Bagchi and ending with Shamsher Singh v. State of Punjab it has been authoritatively laid down that in matters concerning the conduct and discipline of District Judges, their further promotion and confirmations, disputes regarding their seniority, their transfers, the placing of their services at the disposal of the Government for ex cadre posts, considering their fitness for being retained in service and recommending their discharge from service, exercise of complete disciplinary jurisdiction over them including initiation of disciplinary inquiries and their premature retirement, the members of the subordinate judiciary are under the direct control of the High Court, In Shamsher Singh’s case learned Chief Justice observed:

The members of the subordinate Judiciary are not only under the control of the High Court but are also under the care and custody of the High Court.

It has been said that subordinate Judiciary have no two masters.

697. After reviewing all these provisions and the decisions in Mr. Sheth’s case, Chandrachud, J. (as he then was) in his leading judgment observed that: “it is beyond question that independence of the judiciary is one of the foremost concerns of our Constitution. Constituent Assembly showed great solicitude for the attainment of that ideal devoting more hours of debate to that subject, than to any other aspect of the Judicial provisions.” “If the beacon of the judiciary were to remain bright, the courts must be above reproach, free from coercion and from political influence’ (see The Indian Constitution — Cornerstone of a Nation by Granville Austin, pp. 164-65). Sardar Vallabhbhai Patel tersely observed that the judiciary should be above suspicion and should be above party influence, Dr. Ambedkar concluded the debate saying that “there would be no difference of opinion that the judiciary had to be independent of the executive

698. In another judgment forming part of the majority view, Krishna Iyer, J. speaking for himself and Justices S. Murtaza Fazal Ali at p. 485, after referring to various provisions of the Constitution, observed that “these monuments highlight the, concern of the founding fathers for judicial insulation, a sort of Monroe doctrine”. Tunning in his own words in Shamsher Singh’s case that fearless justice is a prominent creed of our Constitution and the in dependence of judiciary is the fighting faith of our founding document he reasserted that the creed of judicial independence is our constitutional ‘religion.’

699. Justice Bhagwati in his dissenting judgment at p. 473 observed that ‘independence of judiciary was held to be a part of our ancient tradition which has produced great judges in the past and judicial independence is prized as a basic value and so natural and inevitable that it has come to be regarded and so ingrained in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for any one to think otherwise.’

700. Having showered encomiums on She independence of Judiciary, Justice Krishna Iyer was not oblivious to the fact that judiciary a non-elective institution, has an elitist approach with little or no accountability. Having been immunised from any discussion in the Parliament or the Legislature of a State and by the sword of Contempt of Court Act from Public criticism, it re mains within its insulated vaults and more often has been found to be utterly unaware of the mores of the day. Conceding that independence of judiciary must be ensured and its immunity from executive and legislative overt and covert pressures or intrusions, must be guaranteed in larger public interest, the role of judge power and the immunity of the judiciary must be studied, “with aware allegiance to the scheme and sweep of the Constitution with insightful homage to the soul of the Paramount Parchment and with sociological appreciation that economic and political order of which the legal order is but a juridical reflection is sharply pluralist. The apparatuses of activist justice, working under such societal strains and stresses and charged with engineering progressive change through the law, may have to enjoy more than traditional functional freedom. For, in a dynamic democracy with goals of transformation set up by the Constitution, the judge, committed to uphold the founding faiths and fighting creeds of the nation so set forth has to act heedless of executive hubris, socio-economic pressures and diehard obscurantism.

701. Mr. Sorabji reinforced the conclusion reached in Mr. Sheth’s case that independence of judiciary is the fighting faith of the founding fathers when he drew our attention to the Government of Canada’ by Dawson, and edn., Revised 1954 wherein it is said that the unique functions which the Judiciary perform in the Government make imperative that they should be given a position quite different from that of the great majority of Government officials. It was, however, conceded by the same author that the judges cannot remain completely unaffected by their environment and cannot and should not be indifferent to the effects of their decisions on the social and political needs of the nation, There will always be some interplay among the habits of mind of the Judge, the society in which he lives, and the decisions which he renders. This view reflects what was urged as value packing in the matter of appointment of judges to which a reference will be presently made. The author concludes that the ‘fundamental decisions in a democracy arise from a constant interchange of desires and commands, tentative advances and retreats, experiments and consolidations, the adoption of one policy, the rejection of another, the haphazard and almost unconscious acceptance of a third, compromises without number, all forming a part of the extremely complex process of determining and applying public policy.’ Awareness of these constitutional changing values must inform the judicial personnel and in the superior judiciary the value system of the judge unconsciously but invariably reflects in his Judgments. Thus the coincident that what is disclosed by the people to the Parliament which in turn went to the Cabinet and to the administration and the resulting action, has to be remembered so that ‘the stream of command–albeit somewhat uncertain and wandering, and sometimes showing little perceptible motion — and also a means whereby honesty and efficiency and devotion to public duty can be appraised and suitably recognised.’ No doubt, people do see in judicial independence a greater promise of justice than could be obtained through the application of ordinary political sanctions but it has a continuous interplay of forces and interaction of various organs ultimately concerning on realisation of constitutional goals.

702. Attention was also drawn to ‘Judges on Trial’ by Shetreat, 1976 Edn., and after reading out the struggle for judicial independence, pointed reference was made to the fact that since Coke’s disgrace’ the Crown could no longer expect to obtain the moral support which it had hitherto received from decisions pronounced by the Bench of the judges who were comparatively at least, with the men who held office subsequently to Coke’s disgrace, independent of the favours and the anger of the Crown.’

703. Nor independence of judiciary is some a priori concept a fact when Judges attempt on their own insulation is occasionally clouded or overlooked. Independence of judiciary under the Constitution has to be interpreted within the framework and the parameters of the Constitution. There are various provisions in the Constitution which indicate that the Constitution has not provided something like a ‘hands off attitude’ to the judiciary. The power of appointment of High Court Judges and the Judges of the Supreme Court vests in the President and the President being a constitutional head, he is constitutionally bound to act according to the advice of the Council of Ministers. One can profitably refer to a number of Articles in the Constitution conferring power on other constitutional institutions such as the executive which when it acts within the limits of power will have a direct impact on the functioning of the judiciary. To briefly refer to some of these provisions, Article 32(3) confers power on the Parliament to frame a law, inter alia, empowering any other Court to exercise within local limits of its jurisdiction any of the powers exercisable by the Supreme Court under Article 32. Article 133(3) confers power on the Parliament to enact a law enlarging the jurisdiction of the Supreme Court. Article 135 preserves the existing jurisdiction of the Supreme Court but makes it subject to the law made by Parliament which might otherwise provide. Article 138 enables Parliament to enlarge the jurisdiction of the Supreme Court in respect of certain matters. Article 139 contemplates conferment on Supreme Court by a law of Parliament all powers to issue writs for any purpose other than those mentioned in Clause (2) of Article 32. Article 140 provides for parliamentary legislation even in regard to supplemental powers of the Supreme Court Article 130 enables the Chief Justice of India with the approval of the president to provide for sitting of Supreme Court at places other than Delhi. Similarly, Arts. 225, 230, 231 and 237 confer power on Parliament to make law directly impinging upon the jurisdiction of the High Courts. Article 126 vests power in the President to appoint acting judges and it does not postulate consultation with any functionary in the judiciary. The position under Arts, 127(1) and 128 point in the same direction, subject of course, to the construction canvassed for on behalf of the petitioners which would be examined a little while after. This conspectus of articles, not meant to be exhaustive, do indicate that Parliament has power to regulate Court’s jurisdiction and as Hart and Webster in the ‘Federal Judicial System’ at p. 317 said that “the bald truth is, is not it that power to regulate jurisdiction is actually a power to regulate rights to judicial process whatever they are and substantive rights generally.

704. Undoubtedly judiciary, the third branch of the Government cannot act in isolation. They are ensured total freedom, of course, after entering the office, from any overt or covert pressure or interference in the process of adjudicating causes brought before them and to this end they are ensured tenure, pay pension, privileges and certain basic conditions of service. The judiciary like any other constitutional instrumentality has however, to act towards attainment of constitutional goals. This in one sense is conceded by Mr. Seervai who led on behalf of the petitioners when in his Sir Chimanlal Setalvad Lectures styled: ‘The position of Judiciary under the Constitution of India, he tersely observed as under:

The Court is essentially a check of the past upon the present. But it is the present that represents the will of the people and it is that will that must ultimately be given effect in a democracy. If the democratic bases of our system are to be respected, the review power of one non-democratic organ in our government should be exercised with self-restraint, It would’ thus unquestionably appear that the independence of judiciary is not to be determined in all its ramifications as some a priori concept but it has to be determined within the framework of the Constitution, True, that the thrust is to ensure that adjudications are untrammeled by external pressures or controls and it was conceded that independence of judiciary under the Constitution is confined to the adjudicatory functions of the Courts and tribunals and they are insulated from executive control in that behalf. It is not unlikely that the total insulation may breed ivory tower attitude a bishop delivering sermon from the pulpit and therefore no claim to be imperium in imperio can be extended to the judiciary or for that matter to any other instrumentality under the Constitution. It is not as if judicial independence is Ian absolute thing like a brooding omni presence. Nothing is more certain in a modern society, declared. U.S. Supreme Court in the mid century, than the Principle ‘that there are no absolutes’. Nor should Judges be independent of the broad accountability to the nation and its indigent and injustice ridden millions. Therefore, consequently one need not too much- idolise this independence of judiciary so as to become counter-productive.

705. A further submission was that the concept of judicial independence may be examined in the context of parliamentary democracy where other organs of the Government, namely, the executive and the legislature are elected people’s representatives while we have eschewed the elective element in appointment of judges. This absence of elective element in judges with guaranteed tenure, conditions of service and immunity from criticism denies any method of accountability of judiciary and the power of judicial review often described as undemocratic (see Schwartz A Basic History of U. S. A. Supreme Court, p. 87) can set at naught the will of the people expressed through its chosen representatives. In order to mitigate the trend disclosed by total aloofness, the Constitution makes envisaged power of appointment in the President advised by the Council of Ministers an elected body so as to make judiciary, accountable and responsible to the constitutional goals. It was urged that this methodology will permit ‘value packing’ in the judiciary. The expression ‘packing’ raised a derisive laughter. It is a much misunderstood word. One must reject emphatically any packing of courts, of persons, of the belief, hue and colour of the party in power but it is equally undeniable that all the three organs of the Government must work towards realisation of constitutional goals and the judiciary has to be inspired by the values enshrined in the Constitution if rule of law is to run akin to rule of life and a feudal society is to be transformed into an egalitarian society by the rule of law, an introduction of the element of reflection of popular will so as to make judicial system more viable and effective as an instrument of change is inevitable and total aloofness of judiciary is inconceivable. While undoubtedly political packing must be abhorred in putting the independence of Judiciary on pedestal one cannot lose sight of the fact that the Judiciary must keep pace with the changing mores of the day, its decision must be informed by values enshrined in the Constitution, the goals set forth in the fundamental law of the land, peoples’ yearning desire for a change for the better and the promised millennium. An activist role in furtherance of the some is a sine qua non for the judiciary. If value packing connotes appointment of persons otherwise well qualified as required by the Constitution but having the additional qualification of awareness of the high priority task of eradication of poverty, removal of economic disparity, destroying the curse of illiteracy, ignorance, exploitation feudal over lordship, coupled with conscious commitment to administering socio-economic justice, establishment of a just social order, an egalitarian society, then not only the value packing is not to be frowned upon nor thwarted by entrenched establishment prone people but it must be advocated with a crusader’s zeal. And judiciary cannot stand aloof and apart from the mainstream of society. This will ensure its broad accountability to injustice ridden masses and therefore it is not unnatural that the status quoits can enter their caveat to value packing but which does not commend. While appointing each individual the constitutional philosophy of each individual ought to be a vital consideration and if this is labeled as value packing, it is neither unethical nor unconstitutional nor a weapon to strike at independence of judiciary.

706. What should be the ideal method for selecting personnel entrusted with the task of dispensing justice has been an endless source of discussion In the democracies the world over till today there are two known methods of selection appointment and election. As election method has not been accepted by the Constitution, it need not detain us. Constitution provides for appointment of judges of the High Court and the Supreme Court by the highest executive in the country, the President. And even in this sphere, in view of the provisions contained in Article 74, the President will be guided by the advice of the Council of ‘Ministers. Undoubtedly, therefore, the power to appoint Judges vests in the executive. This power was specifically conferred after a long debate to which reference will be presently made, But before coming down to the debates of the Constituent Assembly bearing on the subject, a brief survey of the methodology adopted by various democratic countries in the matter of appointment of judges would prove illuminating. In U. S. A. all the federal court judges are appointed by the President subject to confirmation by a simple majority vote of the Senate. The Attorney General has a decisive voice in the nomination made by the President. In the later months of the Truman Administration, the 12 member committee of federal judicial set up of the American Bar Association has come to play an increasingly significant role in the appointive process of the federal judiciary in the U. S. A. but the power still vests in the President whose nomination must be ratified by the Senate meaning thereby the power is in the executive with a legislative veto over it. In the United Kingdom Lord Chancellor is the Queen’s chief adviser on the selection. Lord Chancellor presides from the Woolsack over the House of Lords. He is a member of the Cabinet. He is also the head of the Judiciary and thus combines in his person the three-fold function of executive, legislative and judicial. Even though thus the power is in executive, Richard M. Jackson in his ‘Study on the Machinery of Justice in England,’ noticed that political considerations have hardly entered the process of judicial selection since 1907. In France the President of the Republic who is charged by the Constitution to be “guarantor of the independence of judicial authority,” selects the judges, They are chosen either by the 11 member Counsel Superior de la Magistrate in the case of court’ Appeal and Cour de Cassation, or by the Minister of Justice who may consult with, or receive advice from, the High Council in the case of lower courts. The High Council consists of the President of the Republic, the Minister of Justice, and nine-persons with legal background chosen by the President for a once-renewable term of four years (see The Judicial Process by Henry J. Abraham p. 31). Gainer, in his “political Science and Government” at p. 726 notices that in nearly all countries other than the U. S. A., the judges are appointed by the executive and even in the U. S. A., it is the method followed for the selection of the federal judges. In countries having the cabinet system of Government this in effect means appointment by the Minister of Justice. In Foot-note No. 107, he notices that in Belgium the judges of the Court of Cassation must be appointed from two lists of nominees, each containing twice as many names as there are vacancies to be filed one presented by the court itself, the other by the Senate. This system represents a combination of co-operation, election and appointment, In principle, it has much to commend and it has been advocated in France by various jurists and commissions on judicial reform. Garner at p. 728 recollects the statement of Dean Hall in his study wherein he thus evaluates the system of appointment by the executive; “Of all the methods of selecting judges. of which we have actually had considerable experience in this country, that of appointment by the executive has unquestionably produced the ablest and most satisfactory courts.” Prof. Laski in his Grammar of Politics, p. 545, notices that there are two methods of selection election and nomination, and in England where practically all judicial appointments are under the control of the Lord Chancellor the nomination system is followed and there is similar practice in France, Italy and Germany where all judicial appointments are nominated by the executive, He proceeds to point out that of all methods of appointment, that of election by the people at large is without exception the worst. He notices with satisfaction that most of the great Judges in recent English history, men like Blackburn, Bowen, Watson, Macnaghten, were entirely unknown to the public outside and they were all appointed by nomination. He concludes that by a process of elimination the choice is thrown back upon nomination as the best method available for choice. This method is also not fruitful because it leaves the door too wide open for measurement of fitness in terms of political eminence rather than judicial quality and he illustrates this statement by pointing out that Lord Halsbury used his power of nomination to elevate members of his own party. As a via media he suggests a compromise by recommending that the appointment should be made on the recommendation of the Minister of Justice with the consent of a standing committee of judges which would represent all sides of their work. Be that as it may, this bird’s eye view of the world phenomena should be sufficient to convince us that power to appoint judges where election method is eschewed is always vested in the executive and that it has not been found to be subversive of independence of judiciary. At this stage it would be advantageous to recall that in the 80th Report of the Law Commission of India, it has been frankly admitted that most of the High Courts to which a reference was made by the Law Commission about the existing system of appointment of judges, have in their replies to the questionnaire, expressed the view that the existing system is by and large sound. Therefore, it is not possible to accept a sweeping statement that the vesting of the power of appointment in the executive is subversive of independence of judiciary.

707. I would here briefly refer to the relevant debate in Constituent Assembly bearing on this topic, Winding up the debate on the articles concerning judiciary, Dr. Ambedkar observed that:

With regard to the question of concurrence of the Chief Justice, it seems to be 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 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 that is also a dangerous proposition.” C. A. D., Vol. 8 p. 258 What is specifically moved and rejected while drafting the Constitution cannot be introduced by the back door through the process of interpretation. A specific amendment was moved to the draft Article 193 (corresponding to Article 217 of the Constitution). The proposed amendment reads as under:

C. A. D. Vol. 8, p. 674:

That for, Clause (I) of Article 193, the following shall be substituted:

(I)’ Every judge of a High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court concerned after consultation with the Governor of the State concerned and with the concurrence of the Chief Justice of India and shall hold office until he attains the age of sixty-three years.

(Underlining mine).

708. A similar proposal was also contained in the memorandum representing the views of the Federal Court and of the Chief Justice representing all the Provincial High Courts of the Union of India submitted to the Constituent Assembly. (See Shiva Rao: The Framing of India’s Constitution, Select Documents. Volume 4, page 195). The implication of the amendment is that proposal for appointment of a judge of High Court can only be initiated upon the recommendation of the Chief Justice which would imply that no one else can initiate the proposal for appointment of a High Court judge, an aspect which has some relevance on the construction of Article 217(1) but for the present discussion the importance is of the word ‘Concurrence’ in the proposed amendment. If the amendment had been accepted no appointment of a judge of High Court could be made unless the Chief Justice of India concurred in the appointment. In other words, if the Chief Justice of India does not approve the proposal, he would have a veto on the proposal and his lack of concurrence would kill the proposal. The power of appointment which at present vests in the President would thus stand transferred to the Chief Justice and if such a situation emerged it would have accorded great strength to the submission. Be it noted that this amendment was negatived. In other words, the Constituent Assembly in terms rejected any veto to be vested in the Chief Justice of India in the matter of appointment of a High Court judge. And it is too late in the day to contend that debates in Constituent Assembly do not provide an aid to construction of articles of Constitution or it is impermissible to refer to them. (See State of Mysore v. E.V. Bidap ; Union of India v. H.S. Dhillon and Sagnata Investment Ltd. v. Norwitch Corporation (1971) 3 WLR 133 at P. 137.

709. In this context, Mr. S. P. Gupta, petitioner appearing in person contended that much of the evil flowing from the power of appointment of judges of High Courts and Supreme Court being vested in the President would be eliminated if by a process of interpretation the Court can eliminate the binding character of the advice that may be tendered to the President in discharge of his function of appointing the judge. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. A proviso has been added by the Forty-fourth Amendment Act. 1978, which enables the President to require the Council of Ministers to reconsider such advice either generally or otherwise but makes it obligatory on the President to act according to such advice tendered after reconsideration. The contention is that the President in discharge of his function of appointing judges of Supreme Court and High Courts is to act on his own after consultation with the constitutional functionaries set out in Arts. 124 and 217 and is not to act according to the advice offered by the executive in this behalf. This would have necessitated the ascertainment of the position of the President in our Constitutional scheme but a decision of the seven judges Constitution Bench of this Court in Shaxnsher Singh’s case has authoritatively concluded this point. A.N. Ray, C. J. speaking for himself, Palekar, Mathew. Chandrachud and Alagiriswami, JJ, has held that the President is a constitutional or formal head and he must exercise his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. An exception was noted in the case of Governor where the Constitution has conferred upon him an obligation to exercise his function in his discretion but there is no such provision in case of President and it was concluded that the decision of any Minister or Officer under the rules of business made under Article 77(3) is the decision of the President, In a concurring judgment Krishna Iyer, J. speaking for himself and Bhagwati J. succinctly observed that it is the function of the Council of Ministers to advise the President over the whole of the Central field and nothing is left to his discretion or excepted from that field by this article, After referring to the debates in the Constituent Assembly, Iyer, J. concluded as under: (at p. 2230) We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.

These exceptional situations need not be enumerated because they do not touch upon the subject under discussion. Add to this the consistent view of this Court that the position of the President under the Indian Constitution is akin to the position of the Crown under the British Parliamentary system (See Ramjawaya Kapur v. State of Punjab . A Sanjeevi Naidu v. State of Madras U.N.R. Rao v. Indira Gandhi . In the case of U.N.R. Rao, the Constitution Bench held that Article 74(1) was mandatory and, therefore, the President could not exercise the executive power without the aid and advice of the Council of Ministers. The larger Bench overruled the decision of this Court in Sardarilal v. Union of India Mr. Gupta, however, relied upon the decision of this Court in Jayantilal Amritlal Shodan v. F.N. Rana some observations from which may at first blush seem to support the conclusion reached in Sardari Lal’s case. However, once the decision in Sardari Lal’s case is overruled, observations in Shodon’s case may be hardly of any assistance. Now, even Mr. Gupta concedes that the power to appoint judges of the Supreme Court and High Court conferred by Arts, 217(1) and 124 is executive power and the function is executive function. But after an elaborate reference to the debates in the Constituent Assembly; and especially the stage at which an instrument of instructions was sought to be prepared for providing guidelines to the President as to the manner of discharging his function in the matter of appointment of judges’ of High Courts and Supreme Court, it was urged that while exercising the power in the matter of appointment of judges of High Courts and Supreme Court the President was to act not according to the advice of the Council of Ministers, Too much reference to piecemeal debates at the drafting stage, provisions in the draft Constitution and views expressed by different speakers during the debates in the Constituent Assembly is likely to raise a picture in support of some of the provisions of the Constitution which may be misleading, After a long debate, discussion, suggestions amendments, the end product namely, the provision finally inserted in the Constitution must be examined. The history of the provision may occasionally assist in illuminating the blurred contours. But an over emphasis on the history and debates divorced from the provision which finally emerged after mature deliberation would net help in bringing out the clear intendment underlying the provision. Drawing inspiration from the scheme of Sections 13 and 14 of Government of India Act, 1935, an idea to prepare an instrument of instructions was certainly mooted but finally shelved. In this connection, it would be advantageous to remember that in the memorandum of May 13, 1947, prepared by the Constitutional Adviser for the use of the Union Constitution Committee, the principal provision, embodied in this respect stated that there should be a Council of Ministers to aid and advise the President in the exercise of his functions, but it went on to add “except in so far as he is required by this Constitution to act in his discretion.” A note was appended to this clause which referred to the discretionary powers of the president. Certain special responsibilities were set out in the memorandum in respect of which, according to the note, President was required to act in his discretion. While discharging his functions in respect of his special responsibilities wherein he was required to act in his discretion, a Council of State whose composition was set out in the memorandum was proposed to be set up. At a later stage, a suggestion was made that the subject-matter of appointment of judges of High Court and Supreme Court should be included in the instrument of instructions. The draft of instrument of instructions was also prepared by the Drafting Committee. The instrument listed six categories of appointment in regard to which the President was required to consult the Advisory Board. Of the six categories, two are: The Chief Justice and other judges of the Supreme Court and the Chief Justice and the other judges of the High Court.. Finally the very idea of instrument of instructions and setting up of the Council of State or Advisory Board was dropped. (See Shivarao: The Framing of India’s Constitution, Vol. 4, Pages 338, 374, 491 and 492.) A long debate spreading over sometime took place as to where the power to appoint judges must be centered. A very passionate plea was made for centering this power in the Chief Justice of India. As has been pointed out above this suggestion was specifically negatived and the power was conferred on the President. Thus, if the power to appoint judges is conferred on the President and that power is an executive power, and in the absence of a provision in the Constitution which permits the President to act in his discretion, bereft of the advice of the Council of Ministers, it is not possible to hold that in the matter of appointment of judges of High Court and Supreme Court, the advice offered under Article 74 is not binding on the President, Where the President is hot expected to act on the advice of the Council of Ministers a clear indication is given in the Constitution. To illustrate the point, a reference to Article 103 would be profitable. Article 103 provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final. Sub-article (2) provides that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. The Constitution itself has made it obligatory upon the President not to act on the advice of the Council of Ministers but in accordance with the opinion given by the Election Commission. In other words, the opinion given by the Election Commission is binding on the President. Similarly, Article 217(3) confers power on the President to decide the question of age of a judge of the High Court if any such, question arises, after consultation with the Chief Justice of India and the decision of the President shall be final. The question arose in Union of India v. Jyoti Prakash Mitter as to the nature of the function discharged by the President while determining the question of age of a High Court judge. After noticing that the President by Article 74 of the Constitution is the constitutional head who acts on the advice of the Council of Ministers in exercise of his function, this Court held that the President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. It was, therefore, held that he cannot act on the advice of his Ministers. Once the function of the President while exercising power under Article 217(3) is held to be judicial it follows as a necessary corollary that the President has to act on his own after consultation with the Chief Justice of India but he cannot act on the advice of the. Council of Ministers because a person discharging a judicial or quasi-judicial , function cannot act at the behest or dictate of some other authority. But it cannot be said that while exercising the power of appointment of judges of the Supreme Court and High Courts, the President is either performing a judicial or quasi-judicial function. It is admittedly an executive function and howsoever one may like to wish away the interference of the Council of Ministers in the matter of appointment of judges of High Courts and Supreme Court, the framers of the Constitution after having examined various aspects of the matter conferred power on the President rejecting simultaneously the veto of Chief Justice of India. Once this function is held to be an executive function, Article 74 would come into operation with all its rigours and the President will have to act on the advice of Council of Ministers.

710. Turning now to the group of cases in which circular dated Mar. 18, 1981 issued by the Law Minister, short term extension given to Shri S.N. Kumar, additional judge of Delhi High Court and his subsequent non-appointment on June 6. 1981 figure prominently, what is put in the forefront is position privilege and status of an additional judge appointed under Article 224. Article 224 is such an inseparable adjunct of Article 217 that it was not possible to lay down precisely the construction of Article 224 divorced from or dehors Article 217. Therefore, as a first step, one must now dwell upon the proper and precise construction of Arts. 217 and 224. Construction of a constitutional provision is of long term utility and therefore to eschew the heat and passion and dust of raging controversy, it is always considered prudent to approach the question of construction in abstract and thereafter the fact of a given case may be examined in the light of the construction put on a prevision of the Constitution.

The fasciculus of articles in Chapter V. part VI, provide for a High Court for each State, Article 216 provides for Constitution of High Court, It reads as under:

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.

Draft Article 192 corresponding to Article 216 may be referred to here. It reads as under:

Every High Court shall be a court of record and shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint.

There was a proviso to the draft Article 192 which has not been adopted while enacting Article 216. Article 217 provides for appointment and conditions of office of a judge of the High Court. It reads as under:

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 consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of , a judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:

Provided that-

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

(b) a judge may be removed from his office by the President in the manner provided in Clause (4) of Article 124 for the removal of a judge of the Supreme Court;

(c) the office of a judge shall be vacated by his being appointed by the President 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.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-

(a) has for at least ten years held a judicial office in the territory of India: or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession. Explanation — For the purpose of this clause–

(a) in computing the period during which a person has held judicial office in the territory of India there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law:

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area as the case may be.

(3) If any question arises as to the age of a Judge of 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.

Article 222 confers power on the President to transfer a judge from one High Court to another, Article 224 provides for appointment of additional and acting judges. It reads:

224. Appointment of additional and acting Judges (1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional judges of the Court for such period not exceeding two years as he may specify.

(2) When any judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a judge of that Court until the permanent judge has resumed his duties.

(3) No person appointed as an additional or acting judge of a High Court shall hold office after attaining the age of sixty-two years.

Article 224 initially enacted in the Constitution corresponding to Draft Article 200 was deleted by the Constitution (Seventh Amendment) Act, 1956 and present Article 224 was substituted in its place. By the Constitution (Fifteenth Amendment) Act, 1962 original Article 224 deleted in 1956 was reintroduced as present Article 224A.

711. Article 217 confers power on the President to appoint a judge of the High Court after consultation with the Chief Justice of India, the Governor of the State and in case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court, The power to appoint a judge of a High Court vests in the President but it is hedged in with a condition that it can be exercised ‘after consultation with’ the three constitutional functionaries set out in the article. The use of the expression ‘after consultation with’ instead of ‘in consultation with’ was harped upon to indicate that the expression ‘after consultation with’ means that the power of the President remains intact but before exercise of the power the duty is cast upon him to consult the three functionaries. If on the other hand the expression ‘in consultation with’ was used it may have indicated that the President shared his power with the three constitutional functionaries. Looking to the language of Article 217, I see no distinction in the use of the two expressions which may have an impact on the construction of the article. The power is the power to appoint and the limitation on the power is to consult the three functionaries.

712. Ultimate power of appointment unquestionably vests in the President Before the power to appoint is exercised the President is under a constitutional obligation to consult the three constitutional functionaries.

713. In practice the procedure for appointment has more or less proceeded along the lines as indicated by the Law Commission in its 14th Report, Vol I, p. 71. Briefly recapitulated, it appears that the Chief Justice of the High Court forwards his recommendation to the Chief Minister who in turn forwards his recommendation in consultation with the Governor to the Minister of Justice, Formerly it used to be Home Minister. If the Chief Minister does not agree with the recommendation of the Chief Justice he makes his own recommendation but in such a situation the Chief Justice is given an opportunity to make his comments on the recommendation made by the Chief Minister. Either agreed or the rival recommendations are then forwarded to the Minister of Justice who forwards the recommendation to the Chief Justice of India. After obtaining opinion of the Chief Justice of India the Minister submits his advice to the President as to the selection to be made. The Law Commission noticed that this procedure places the Chief Justice in an awkward position. In practice occasionally the Chief Justice may have a judge appointed at the instance of the local executive and. against his own preference. In order to obviate executive interference in the matter of appointment of judges the Law Commission recommended that Article 217 must be suitably amended to provide for appointment of a High Court Judge on the recommendation of the Chief Justice of the High Court which would in practice lead to a situation where one not recommended by the Chief Justice can never be appointed as a High Court judge. Undoubtedly Chief Justice of the High Court would be the most competent person to evaluate the merits, ability and efficiency of a person recommended but as noticed by the Law Commission there may be and frequently there are other matters relating to the person recommended which the State executive would alone be in a position to know and of which they may inform the Chief Justice. Such other matters may include, factors such as the local position of the person proposed, his character and integrity, his affiliations, which may have considerable bearing upon his efficient functioning as a judge and all these may at all be within the knowledge of the Chief Justice of the High Court. Approaching the matter from this angle the Law Commission rejected the submission that the State executive should have no share in the decision making process for appointment of a judge of the High Court and ultimately expressed a considered opinion that where the Chief Justice of the High Court recommends a person for a judgeship, the State executive should have an opportunity to effort its comments upon that recommendation but that such consultation with the State executive should be limited to other factors such as have been enumerated hereinbefore. It may be mentioned that this recommendation of the Law Commission was not accepted by the Government. The fact remains that even a body like the Law Commission was of the considered opinion that it would not be conducive to appointment of suitable persons to totally exclude the State executive in the decision making process for appointment of a judge of the High Court. Fourteenth report was submitted in 1958 but as late as 1980 in Eightieth Report the Law Commission has reaffirmed the view that the present procedure is good. Therefore, it is not possible to, accept rather an extreme argument that participation of the executive in the decision making process for appointment of a judge would be subversive of the independence of the judiciary. In fact, viewed from another angle also it would be impermissible to exclude participation by the State executive in this process. The power to appoint a judge of the High Court is in the President. When appointed by the President the judge would be working as a judge of the High Court to which he is appointed. His salary, pension, allowances, etc. would be chargeable on the Consolidated Fund of the State. probably influenced by these considerations the Constitution itself provides for giving a share to the State executive in the decision making process and it would be contrary to the intendment of the Constitution to exclude it by process of interpretation.

714 The Constitution makers attached a high degree of importance to the office of a judge of the High Court. By a conscious effort they were insulating the judiciary against executive interference and, therefore, made the task of removal of a judge once appointed very difficult, if not impossible. It was conceded on all sides that the Judges (Inquiry) Act, 1968 has provided such an elaborate and cumbersome procedure that it would be rather next to impossible to impeach a judge. Once therefore, someone is appointed as a judge of the High Court under Article 217, he is to be suffered even though his continuance may not be conducive to the fair administration of justice. Extreme care was, therefore, focused on the question of initial appointment, probably in order to see that error of judgment of one or the other constitutional functionary may not go unnoticed. Three high constitutional functionaries were involved in the process of appointment of a judge of the High Court, and each one, namely, the Chief Justice of the High Court, the Governor of the State, are the highest judicial and executive functionaries in the State and the Chief Justice of India holder of the highest Judicial office in the country, were to be consulted before the President took the step of making an appointment under Article 217. When three such high constitutional functionaries participate in the process of consultation there would be a remote or minimal chance of some infirmity being Overlooked or any vital consideration relevant to the process of appointment being ignored and the best man will be selected. In the ultimate analysis consumers of justice are interested in securing undiluted justice free not only from bias or subservience but free from predilections, aberrations, preconceived notions and personal philosophies of incumbent of the office of a judge. In a country ruled by rule of law, respect for the law is a sine qua non and the respect for law would increase and enhance directly in the proportion to the work of judges in law courts which would inspire confidence. Mr. Justice Arthur T. Vanderbilt in the “Challenge on Law Reforms” (Princeton; Princeton University Press. 1955), pp. 4 and 5 vividly stated which bears quotation:

…it is in the courts and not in the legislature that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of the courts, their respect for law will survive the short comings of every other branch of government: but if they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of society.

There seems to be, therefore, no doubt that actuated with a burning desire that the best one is selected for appointment, while vesting the power in the highest executive of the country three high constitutional functionaries were involved in the decision making process. The State executive, therefore, must participate as intended by the Constitution in this process and its role cannot be minimised by the specious plea that it might erode independence of judiciary.

715. Experience gained for a period of three decades in working Article 217 undoubtedly with some rare exceptions would show that the framers of the Constitution envisaged that by a process of discussion amongst themselves, by cross fertilisation of information from each other, if these three high constitutional functionaries reached a consensus it will eliminate even the microscopic error in making the appointment. Undoubtedly, in saying this the role of the President in making the final appointment is not to be minimised.

716. But Mr. Garg contended that looking to the position of the Chief Justice of India as the incumbent of the highest office at the apex of the judiciary, in the event of an unfortunate, albeit undesirable situation of the difference of opinion amongst the three constitutional functionaries, the view expressed by the Chief Justice of India must have primacy. This submission may be examined from two independent standpoints. First, is there anything in the language of Article 217 which places Chief Justice of India on a pedestal in relation to the other two constitutional functionaries? And secondly, is the Chief justice of India in a position more advantageous compared to other two functionaries to be infallible in his view? Brusquely stated, does he have a veto over the view expressed by the other two constitutional functionaries ? The last question can be answered at once. In the earlier portion of this judgment a statement by Dr. Ambedkar opposing an amendment to draft Article 193 (corresponding to Article 217) making concurrence of Chief Justice of India for appointment a sine qua non describing it as a dangerous proposition has been noticed. What is specifically rejected cannot be brought in by the back door.

717. Article 217 on its own language and intendment repels the contention. The President is under constitutional obligation to consult the three constitutional functionaries. Each is on par. They are coordinate authorities. There is no relative hierarchy. At any rate, the appellate jurisdiction of the Chief Justice of India functioning as a Judge of the Supreme Court over a decision of the Chief. Justice of the High Court would not provide an indicia that the view of the Chief Justice of India in administrative matters has predominance or overriding effect over the view of the Chief Justice of the High Court. It must be recalled that in the process of drafting the Constitution there was some suggestion that the Supreme Court shall have administrative supervision over the High Court and this suggestion was rejected. Initiation of proposal for appointment of High Court is not a judicial Junction of the Chief Justice of the High Court. While performing this function Chief Justice of the High Court is not under the administrative subordination of the Chief Justice of India, Further, as the system functions, proposal for appointment of a High Court judge is initiated by the Chief Justice of the High Court. The person recommended may be a member of the Bar or from the subordinate judiciary, say a District Judge. As the High Court has both administrative and judicial control over the subordinate judiciary, the Chief Justice of the High Court is more knowledgeable about the capacity, ability and eligibility of a District Judge for being considered for the post of High Court Judge. Chief Justice of India will have very little information about the capacity, eligibility and quality of a Dist. Judge. Similarly, while recommending a person from the Bar in the State, Chief Justice of the High Court is more advantageously placed compared to Chief Justice of India. And, Chief Justice of India will have to depend upon his sources of information which may not either exclude grapevine or hearsay. He has little or no opportunity of seeing the member of the Bar functioning as a lawyer in the Court. Cumulatively, therefore, Chief Justice of the High Court is more advantageously placed compared to the Chief Justice of India in this behalf. About the various other factors which enter into the verdict, the State executive will be more favourably placed than the Chief Justice of India because it has its own instrumentalities for inquiry and information. Therefore, the view of the Chief Justice of India cannot have any primacy in this behalf.

718. Reference in this connection to an observation in Shamsher Singh’s case that “in practice the last word in such 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” (at p. 873 of SCR) : (at p. 2228 of AIR) is not apposite. Shamsher Singh belonged to the subordinate judiciary and while examining his case reference was made to Union of India v. Jyoti Prakash Mitter in which case the question of determination of the age of a judge and the construction of Article 217(3) figured. Article 217(3) obliges the President to consult the Chief Justice of India before deciding the question as to the age of a judge of the High Court. The view expressed therein, would not support the contention about primacy, because unlike Article 217 and similar to Article 222. Chief Justice of India is the only constitutional functionary required to be consulted by the President while discharging his function under Article 217(3).

719. Mr. Seervai in this context urged that the Chief Justice of India has been given the position of primacy because his training as a judge gives him a judicial outlook which would help him to consider the appointment of judges in a judicial spirit. Further, the Chief Justice of India having reached the highest position in the judiciary is free from even a suggestion that his action was actuated by a desire to secure a promotion for himself in the judicial hierarchy. Add to this the consideration that if parochial and local considerations are to be excluded in the appointment of High Court judges, the Chief Justice of India is more likely to exclude such considerations than the Chief Justice of High Court, To say that high constitutional functionaries like the Chief Justice of a High Court would not be free from such shortcomings set out above and that the Chief Justice of India would be free from such shortcomings appears to be an unwarranted assumption. It is well known that some Chief Justices declined to come to the Supreme Court and had they come at least one of them was likely to be the Chief Justice of India by vertical movement according to seniority. If he declined to become the Chief Justice of India and continued to remain Chief Justice of High Court, merely because he opted for High Court judgeship would not be sufficient to reject his opinion, or merely because Chief Justice of India who opted to come to the Supreme Court and became the Chief Justice of India, his view as Chief Justice of India should have greater weight. The submission is not basically sound to overreach the plain intendment of Article 217. It was said that if the submission that the view of the Chief Justice of India should be accorded primacy is rejected in the unfortunate event of divergence of opinion between the Chief Justice of India and the Chief Justice of High Court, the executive would function like an umpire and that this would erode independence of Judiciary and to avoid this undesirable situation the Court must lean in favour of according primacy to the view of the Chief Justice of India. In support of the submission, the expression ‘paterfamilias’ used by me in my judgment in Mr. Sheth’s case in reference to the Chief Justice of India was relied upon and it was urged that this very description would unerringly point in the direction of the primacy being accorded to the view of the Chief Justice of India. Undoubtedly, I described the Chief Justice of India as paterfamilias of judiciary. And that was in the context of the consultation which the President must have with the Chief Justice of India before exercising the power under Article 222. But let it not be overlooked that there was no question of primacy to be accorded to the view of the Chief Justice of India with regard to the advice preferred by him When consulted under Article 222 because he is the only constitutional functionary required to be consulted. The very expression ‘primacy’ envisages two or more co-ordinate authorities, one having a preferential position over the other. Such a situation does not arise under Article 222 and, therefore, turn out of context the use of the expression paterfamilias would not help. Therefore, it is not possible to accept the submission that the view of the Chief Justice of India when consulted under Article 217 would have primacy over the view of the Chief Justice of the High Court.

720. Interestingly a reference in passing may be made to the divergent views on this aspect even amongst the petitioners. Article 222 which confers power on the President to transfer a judge of the High Court to another High Court provides that the power to transfer can be exercised in consultation with the Chief Justice of India. While hearing the petition challenging the transfer of Chief Justice K.B.N. Singh of the Patna High Court to the Madras High Court, Dr. Singhvi appearing for Mr. K.B.N. Singh vehemently traversed the argument of Mr. Garg that the view of the Chief Justice of India must have primacy and it was said that no such primacy as is contended for can be accorded to the view of the Chief Justice of India. Specific submission was that if the proposal for transfer is initiated by Chief Justice of India it would be violative of Article 222. If Article 222 which confers power on the President to transfer a Judge from one High Court to another High Court is hedged in with a condition that it can be exercised after consultation with the Chief Justice of India and this consultation has been held to be an adequate safeguard against improper transfer in Mr. Sheth’s case, and even though that being the only safeguard, it was submitted that the view of the Chief Justice of India cannot have primacy; how would it be proper to accord primacy when Article 217 mandates consultation with three constitutional functionaries including the Chief Justice of India? Primacy has the flavour of veto and if conceded the authority to be consulted would become the final decision making authority. No canon of construction permits such a thing to be done. As stated by Dr. Ambedkar the Court cannot assign to one authority powers explicitly granted to another. This will be elaborated at a later stage. Therefore, also, the contention about primacy of the view of the Chief Justice of India must be negatived.

721. The next limb of the argument is as to whether the proposal for appointment can be initiated by the Chief Justice of the High Court or the Chief Justice of India only or it can be initiated by any of the four constitutional functionaries adumbrated in Article 217. In this context the practice followed till the 14th Report of the Law Commission and till the 80th Report has been set out earlier in this judgment Even, the Law Commission, after noticing the defects and drawbacks in the procedure followed for appointment under Article 217 ultimately recommended that Article 217 be suitably amended so that the proposal for appointment of a High Court judge must initiate upon the recommendation of the Chief Justice meaning thereby that the Chief Justice alone would be able to initiate the proposal. It expressly stated that it should not be open to the State executive to propose a nominee of their own and forward the name of such nominee to the center. In its view, if the State executive disagrees with the recommendation of the Chief Justice for such other reasons as mentioned in the Report it should be open to it to disagree with the recommendation and request the Chief Justice to make a fresh re-commendation. The weighty recommendation of Law Commission that a proposal for appointment of a High Court Judge can originate only upon the recommendation of the Chief Justice was in terms negatived by the Constituent Assembly. C. A. D. Vol. 8, p. 674. There is nothing in the language of Article 217 that the proposal cannot be initiated by any of the four constitutional functionaries set out in the article. If elaborate provision was made for appointment of a High Court Judge with a view to securing the appointment of the best available man for the time being it would not be conducive to effectuating the purpose underlying the article if the proposal can be initiated by the Chief Justice of the High Court alone. Cases are not unknown where the Chief Justice of the High Court having his own philosophy adopted the same as his yard-stick to determine suitability for appointment and thereby excluded from his consideration a sizeable section of the Bar. Similarly, the Chief Justice of India can also initiate a proposal because if he finds someone practising in the Supreme Court as one suitable for appointment to the High Court, we see nothing objectionable Or improper in his initiating the proposal. Similarly, there could not be a blanket embargo on the State executive initiating the proposal We agree that the State executive should not make its own recommendation and forward it directly to the center. The State executive initiating the proposal must first forward it to the Chief Justice of the High Court who would be better informed about the practising advocates as well as the District Judges subordinate to the High Court, and seek the views of the Chief Justice. The views of both may be forwarded to the Chief Justice of India. The process of consultation must go on whatever new facts relevant to the consideration are elicited or obtained by any of the constitutional functionaries for consideration of the other constitutional functionaries and this may ultimately lead to a possible concensus, amongst all the constitutional functionaries and translate the purpose underlying Article 217 into reality by appointing the best man to this high office. The submission that any proposal from the State executive or even from the Central Executive for consideration of the other two constitutional functionaries would make a serious inroad on the independence of judiciary is to ignore the role assigned to these two constitutional functionaries in the process of appointment. However, the consultation must be not merely formal but of substance and the scope and the content of the consultation will be presently examined.

722. But before spelling out the scope and content of consultation envisaged by Article 217. it is necessary to refer to Article 224. Frankly, the scope, ambit and the underlying purpose of Article 224 has consumed maximum time at the hearing of these matters. In the draft Constitution there was no provision similar to present Article 224, which was introduced by Constitution (Seventh Amendment) Act, 1936. How ever, Article 192 of the Draft Constitution provided for Constitution of a High Court consisting of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. There was a proviso to the article which provided that the judges so appointed together with any additional judges appointed by the President in accordance with the next following provisions of the Chapter shall; at no time exceed in number such maximum as the President may by order fix in relation to that Court Article 216 corresponding to draft Article 192 without proviso has not cast any obligation on the President to fix maximum number of judges that can be appointed in a given High Court. It provides for a flexible situation in that the President may from time to time appoint such other Judges when deemed necessary to appoint. If the number was fixed by the Constitution every time a constitutional amendment would become necessary if more Judges were required to be appointed. pragmatism and flexibility informed the approach of the Constituent Assembly in deleting the proviso and thereby removing the obligation of the President to fix maximum number of Judges in relation to each High Court. Article 224 makes provision for appointment of additional Judges, The concept of additional Judges also figured in the proviso to draft Article 192. Therefore, when the draft Constitution envisaged appointment of additional judges, the expression ‘additional judge’ may be understood in contradistinction to permanent judge or an acting judge or recalling of a retired High Court Judge, The expression ‘permanent judge’ in relation to High Court Judge is to be found in Art 220 which prohibits a permanent Judge of a High Court from pleading or acting in any court or before any authority in India except the Supreme Court and the other High Courts. One can legitimately say that the trainers of the Constitution envisaged appointment of an Additional Judge in the High Court in contradistinction to a permanent judge or acting judge. A retired Judge of a High Court who is requested to sit and act as a Judge of the High Court is not deemed to be a Judge of the High Court and can be given no label or nomenclature and is certainly not an Additional Judge as contemplated By Article 224.

723. Article 224(1) enables the President to appoint additional judges of a High Court if the conditions enabling the exercise of power are satisfied. There are two situations, contingencies or eventualities in which alone an additional Judge can be appointed in a High Court and they must pre-exist before an additional judge can be appointed. These are (1) if by reason of any temporary increase in the business of a High Court or (2) by reason of arrears of work therein it appears to the President that to deal with the aforementioned situations it is necessary to increase the number of High Court judges for the time being, he may do so and may proceed to appoint duly qualified persons to be additional judges of the court for such period not exceeding two years, as he may specify. There is thus the power to appoint additional judges with a limitation on power that it can be exercised if one or the other or both of the aforementioned pre-conditions for the exercise of the power are satisfied. If one or the other or both of the pre-requisites are satisfied the President may proceed to appoint an additional judge but in the absence of both there is no power in the President to appoint an additional judge in the High Court. Appointment cannot be made for a period exceeding two years and before or while making the appointment the number of judges in the High Court may be increased for the time being, that is, not permanently. Recalling Article 217(1) which confers power on the President to appoint a judge of the High Court, one can say without the fear of contradiction that the expression ‘Judge’ in Article 217 includes an additional judge. If the pre-conditions set out in Article 224 are satisfied and the President proceeds to exercise the power to appoint an additional judge, he can appoint only such person who is qualified. The eligibility qualifications for being appointed as a judge of the High Court are set out in Learned Counsel Article (2) of Article 217 and it is unnecessary to recall those qualifications save and except saying that the qualifications for a judge to be appointed under Article 217 or an additional judge to be appointed under Article 224(1) are the same. However, the tenure of a judge appointed under Article 217 and one appointed under Article 224 materially differ. A High Court Judge appointed under Article 217 s entitled to hold office until he attains the age of 62 years, but in the case of an additional judge the period has to be specified and the maximum period that can be specified by the president for which he can hold office is two years. The view that the expression ‘judge’ in Article 217 includes an Additional Judge is reinforced by the fact that while introducing Article 224 by Constitution (Seventh Amendment) Act, 1956, a consequential amendment was inserted in Article 217. In the absence of the amendment, an additional judge would enjoy tenure till he reached the age of sixty-two years. In order to avoid any confusion in this behalf the words “shall hold office n case of an additional judge or acting judge as provided in Article 224 and in any other case, until he attains the age of 62 years” were added in Article 217. If the expression ‘judge’ in Article 217 were not to include an additional judge it would be redundant to incorporate the maximum tenure of two years prescribed in Article 224 for an additional judge in Article 217. It was however, foreseen that if the necessary amendment was not incorporated in Article 217 one could have argued with confidence that even the additional judge would retire on attaining the age of 62 years. Therefore, to put the matter beyond the pale of controversy while introducing Article 224 in 1956 a consequential amendment was made in Article 217 that the tenure of an additional judge shall be as set out in Article 224 and that it cannot exceed two years. It is not necessary to refer to the tenure of an acting judge as envisaged in Article 224(2) because that aspect is not relevant to the present discussion. So far there is no controversy.

724. It may be mentioned that an additional judge appointed under Article 224 and a judge of a High Court appointed under Article 217 as far as pay, privileges, duties, obligations, adjudicatory powers are concerned, are on par, the glaring difference being in the tenure. But, in this context our attention was drawn to Krishan Gopal v. Prakash Chandra . An election petition was filed in the Madhya Pradesh High Court which in course of time came to be assigned to Suraj Bhan, J. who had retired on Feb. 2, 1971. but the Chief Justice of Madhya Pradesh High Court, after obtaining previous consent of the President, requested Suraj Bhan. J. to sit and act as a Judge of that Court under Article 224A of the Constitution. Before the allocation of the election petition to Suraj Bhan, J. the same was being heard by Vyas, J. and when an intimation was sent to the petitioner that his petition was allocated to Suraj Bhan, J., he objected to the same. Suraj Bhan, J, rejected his application upholding the order of allocation of the petition to him. This order was challenged by a petition under Article 226 of the Constitution for the issuance of a writ of mandamus directing Suraj Bhan, J. to forbear from giving effect to the order of Chief Justice. A Bench of the Madhya Pradesh High Court dismissed this writ petition. Upon a certificate under Article 132, an appeal was filed in this Court. In this case construction of Article 224A came up before this Court Two contentions were urged on behalf of the appellant. They were: (i) that a person requested to sit and act as judge of the High Court under Article 224A was not a judge of the High Court for the purpose of Section 80A of the Representation of the People Act, and (ii) that even assuming that he was a judge for the purpose of Section 80A of the Act, the election petition could not, after it had been entrusted to a permanent judge, be allocated to a judge appointed under Article 224A. This Court rejected both the contentions but finally observed as under (at p. 216 of AIR):

…All the same, looking to the special facts and circumstances of this case, we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned judge of the High Court who may be assigned for the purpose by the Chief Justice of that Court, even though we find that the additional or acting judges or those requested under Article 224A of the Constitution to sit and act as judges of the High Court, if assigned for the purpose by the Chief Justice, are legally competent to hear those matters.

This question is hardly of any assistance on the question of eligibility, capacity and competence of an additional judge to undertake any adjudicatory process of any matter assigned to him by the Chief Justice and no distinction can be made between a permanent judge, if one appointed under Article 217 can be so designated and an Additional Judge appointed under Article 224.

725. If an additional judge can only be appointed either by reason of temporary increase in the business of the High Court or by reason of arrears of work therein, what would be the position of such an additional judge at the expiration of his period of two years constitutionally fixed if the temporary increase and/or the arrears to deal with which he was appointed remain unabated? In other words, if the temporary increase to clear which he was appointed continues to remain uncleared or the arrears to tackle which he was appointed not only neither decrease nor wholly get eradicated but remain at the same level or may be found mounting up what would be the right to further continuance of the additional Judge? Some vital questions arise qua the position and continuance of an Additional Judge.

726. The questions posed are of such dimension and magnitude in the field of constitutional law and of such far-reaching effect, defying simple and straightforward solutions because extreme position was adopted on both sides. Wisdom and circumspection should therefore be our watchwords.

727. The questions posed are: Is the Additional Judge, given the continued existence of situation which necessitated his initial appointment, entitled as a matter of right to be reappointed for a further period of two years? If in the mean time there is a vacancy in the permanent strength of the High Court, is the additional judge without anything more entitled to be appointed as permanent Judge? If an additional Judge was appointed by reason of any temporary increase in the business of the High Court or by reason of arrears of work there in or if the temporary increase has become a permanent feature of the High Court and if the arrears have not only not been reduced but are mounting up meaning thereby that the prerequisites, existence of which enabled the President to exercise the power of appointment of additional judge, continue to exist, is he entitled to be re-appointed as a matter of right? Could he be deemed to be permanently appointed? Answer posed on the other side was that he had no right to be considered nor is he deemed to be appointed as permanent judge even if he is available and it would be open to the President to appoint anyone else without considering the case of the additional judge whose tenure has come to an end. In other words, he has neither weightage nor a right to be considered. He is on par, according to the learned Attorney General, with any other person in the Bar or in the subordinate judiciary.

728. One submission may be disposed of at the outset Conceding the contention of Mr. Seervai that the position, powers, privileges and jurisdiction of permanent and additional judges of High Court and the qualifications for their appointment are the same, but the marked contrast in the raison d’etre of their appointment and the tenure for which they are appointed cannot be overlooked. The present agonising situation arose from a common understanding of the requirements of Article 224 both by the judiciary and the executive in making appointments of High Court judges since 1956 till today. Every High Court has a sanctioned strength of permanent judges and additional judges. Save rare exceptions, not easily noticeable, whenever a vacancy arose to the permanent strength, the senior most additional judge was offered the permanent vacancy and in the vacancy so caused in the strength of additional judges a fresh appointment was made. When I say senior most additional judge, I only refer to the length of period for which the judge has worked and one who has worked for the longest duration amongst additional judges is described by me as senior most, If the tenure of an Additional Judge specified by the President in the warrant of appointment expires and there is no vacancy in the permanent cadre of High Court judges obviously such additional judge was usually offered a further tenure of ordinarily two years.

729. While making a fresh appointment the procedure followed was one prescribed in Article 217. Article 224 cannot be divorced from Article 217 because an additional judge appointed under Article 224 is a judge within the meaning of the expression in Article 217 and such an additional judge before entering upon his office has to make and subscribe an oath or affirmation according to the form set out in the Third schedule. Article 224 obliges the President to specify the tenure of the additional judge for such period not exceeding 2 years. Now, therefore, if the additional judge with the knowledge of the specified period of tenure enters upon his office, makes and subscribes to the oath and starts functioning as a judge of the High Court, undoubtedly when the period expires, if nothing else takes’ place he ceases to be a judge of the High Court. Assuming that he has to be appointed again, the whole gamut of consultation as constitutionally ordained in Article 217 has to be gone through again. Harsh though this may appear, it is an inescapable situation flowing from the provisions of the Constitution. Now if the process of consultation starts over again, undoubtedly the various constitutional functionaries are bound to express their opinion on the relevant merits and demerits of the judge and the expression of opinion would be more or less on the same lines as when a person is being appointed for the first time as a judge of the High Court. Whatever canon of construction one may resort to, it is not possible to hold that the consultation in respect of an additional judge who has been once appointed and whose tenure has expired and being eligible, is being considered for appointment afresh for a fresh tenure, the relevant consideration which would I govern the decision for appointment would be different, save and except saying that the constitutional functionaries will have the additional benefit of the experience of the person concerned as a Judge of the High Court for the period he was appointed and he worked,

730. Three different contentions have been advanced in this behalf and each one will have to be separately examined. One submission of Mr. Garg strongly supported by Mr. Seervai, and learned advocates for the other petitioners is that the Additional Judge is not on probation and, therefore, his eligibility or all those relevant considerations in service jurisprudence which are taken into account while offering a substantive appointment of a probationer could not be brought into consideration. The contention is that his qualifications for being appointed as a judge have once been examined and accepted, when he was appointed as additional judge: these considerations cannot be re-examined. And at any rate, it is not open to the Chief Justice of the High Court to sit in appeal over the judgments of the judge concerned and reach his own conclusions about the judicial capacity as flowing from the judgments of the judge, Another limb of the submission is that in order to ensure independence of judiciary, an additional judge who has functioned as a Judge and has had numerous occasions to deal with a litigant, namely, the executive which has the power to make fresh appointment, should not be at the mercy of the executive and, therefore, it was urged by Mr. Seervai that if one or the other of the two pre-conditions in Article 224 which enabled the President to exercise the power of appointing an additional judge continues to exist a fresh appointment must either follow as a matter of right or if the conditions for exercise of the power continue to exit he must be deemed to have been appointed as a permanent Judge. The submission is that the permanent Judge is appointed for the routine work of the High Court including the work to deal with the arrears and if the work load is sufficient for the permanent strength at the time of initial appointment and continues to disclose the same position, the initial appointment of the Additional Judge was not within the purview of Article 224 but it must be deemed to have been within the purview of Article 217 and therefore, such a judge would, be a permanent Judge. On the other hand, the learned Attorney General contended that if the appointment is made within the four corners of Article 224, the assumption is that the Judge so appointed would either deal with the problem arising out of the temporary increase in the business of the High Court or tackle the arrears to clear which he was appointed and it is not a relevant consideration whether he has succeeded or not succeeded and it would be open to the Government to appoint him or to appoint anyone else completely ignoring any claim of such an additional Judge whose tenure has expired. It was asserted with emphasis that such an additional judge has no right to be reconsidered and the situation at the expiry of his tenure is the same as it was at the time of his entry and he or any other person could have been appointed and he is not entitled to be considered in priority or preference to any other person who can be picked up from the Bar or from the subordinate judiciary. Extreme illustrations were given to make good either point, of view by both sides but the illustrations hardly if ever provide a reliable yard-stick to- interpret a constitutional provision.

731. In an emotionally surcharged voice we were told that there were more than 65 additional judges on April 1st, 1980 all over the country whose fate to in balance and, therefore, the Court should be very careful and circumspect in putting such construction on Article 224 which would not leave these 65 additional judges to the vicissitudes of executive smile or frown. On the other hand we were told that the whole conspectus of the Articles with which the Court is dealing with in these matters were debated over a long period in the Constituent Assembly and the trend indicates that speaker after speaker repeatedly asserted that the mechanism for appointment of judges must be so devised that the best in the country is available for this high constitutional office and that the checks and balances provided must be such as to weed out and eliminate the unworthies. It was, therefore, said that such rigid construction should be avoided which would enable an additional judge who has made himself thoroughly undesirable during the period of his tenure should not be foisted (to be foisted?) upon the society and the consumers of justice because the door against his exit is tightly bolted. We have thus to steer clear of all these extreme propositions.

732. We were told that constitutional conventions and practice are a sure guide to ascertain, decipher and unravel the intendment of the various articles. The constitutional conventions and practice as an aid to construction were canvassed because Article 224 has been so implemented under a common belief albeit mistaken of the executive and judiciary that the present impasse is the end-product of it.

733. The proviso to draft Article 192 envisaged appointment of additional judges but the tenure of such additional Judges was not specified. However, when the Constitution was adopted and Article 216 took place of draft Article 192, the proviso was deleted. Article 216 casts an obligation on the President to appoint a Chief Justice and such other Judges from time to time as he deems it necessary to appoint. Therefore, the power to appoint coupled with a duty to appoint has been cast on the President. It is not necessary to consider whether this duty can be enforced by a mandamus. An extreme illustration was taken that the President may appoint one Chief Justice and one additional judge and the consumers of Justice would suffer inordinate delay in disposal of their cases if the judiciary denies to itself power to issue a mandamus to the President to perform his function to appoint such number of judges keeping in view the institution, disposals and arrears, to be able to dispose of cases speedily and within a reasonable time. Such an illustration overlooks a vital point that the arrears in the courts are not attributable solely to the inadequate number of judges in each High Court. It would be merely adding to the length of this judgment if all the causes more vital than the inadequacy of the number of judges contributing to the mounting arrears are enumerated here. But I cannot resist the temptation of referring to what Mr. Seervai bluntly stated to the Court that to a considerable extent the senior members of the Bar are responsible for the sorry state of affairs more so because the courts have refused to enforce the provision in Order XVII, Rule 2, Civil P. C. namely that non availability of counsel is not a ground for adjournment. Present malaise in this Court was also touched upon by him. Be that as it may, the Committee appointed by the Government presided over by the then Chief Justice of India, Shri J.C. Shah, extensively examined the question of mounting arrears in the High Courts and found that the inadequacy of number of judges in each High Court is relatively a minor factor contributing to the mounting arrears but there are more weighty factors which are to be tackled with.

734. In a parliamentary democracy with a written Constitution in which three organs of the Governments are clearly marked out, it becomes a primary duty of the State to provide for fair and efficient administration of justice. Justice must be within the easy reach of the lowest of the lowliest. Rancour of injustice hurts an individual leading to bitterness, resentment and frustration and rapid evaporation of the faith in the institution of judiciary. Two vital limbs of the Justice system are that Justice must be within the easy reach of the weaker sections of the society and that it must be attainable within a reasonably short-time, in other words, speedily. Leaving aside other factors contributing to the arrears in courts, it cannot be gainsaid that in each High Court adequate number of Judges must be appointed and the situation in each High Court must be regularly reviewed by the President so as to efficiently discharge the duty cast on him by Article 216. In the course of hearing a statement was made on behalf of the Union of India that the Government is taking steps to review the strength of each High Court to determine the adequate strength of each High Court and then to take steps to make appointments according to the targets so devised. As this statement is a solemn undertaking to this Court, it may be reproduced in extenso:

The Union Government has decided to increase the number of posts of permanent judges in the various High Courts keeping in view the load of work, the guidelines prescribed and other relevant considerations. In fact in 1980 itself, on the basis of institution, disposal and arrears of cases and the guidelines prescribed, the Governments of seven States where the problem was more acute, had been addressed to consider augmentation of the Judge strengths of their High Courts. It has been decided that where necessary the guidelines prescribed will be suitably relaxed by taking into account local circumstances the trend of litigation and any other special or relevant factors that may need consideration. The Union Government will take up the matter with the various State Governments so that after consulting the Chief Justices of the High Courts, they expeditiously send proposals for the conversion of a substantial number of posts of Additional Judges into those of permanent judges.

2. The Union Government has also decided that ordinarily further appointments of Additional Judges will not be made for periods of less than one year.

But to say that a litigant who wants his case to be disposed of as early as possible being convinced that his case is not handled by the Court for want of adequate number of judges can bring an action to issue a mandamus to the Government to appoint adequate number of judges requires more elaborate arguments and in view of the statement it is not necessary to deal with the submission. An additional error in the submission founded on a mistaken belief is that all shortcomings and infirmities in the system can be remedied by judicial process. There is no greater error than entertaining such unwarranted belief. Courts cannot cope with all infirmities in the system. That is the admonition of Frank Furter, J. I quote:

In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of people’s representatives. (Baker v. Carr (1962) 369 US 186 at 270). Failure to perform duty of appointing adequate number of Judges in High Courts cast on the President by Article 216 would make him answerable to the Parliament and not to the Court.

735. The problem of arrears is much too complex to be referable to one single cause, namely, inadequate strength. Obligate the President by a mandamus to appoint adequate number of Judges in High Courts and this intractable problem defying solution would evaporate like the morning dew, betrays woeful lack of appreciation of Parkinson’s Law that a large number of Judges may result in further mounting of arrears. Not the number, the system is cancer ridden. The justice delivery system of this country is utterly alien to the genius of this country. This is a smuggled system from across the shores imposed upon us by the empire builders for their own political motives and during the foreign rule a class came into existence which has enormously benefited by this justice delivery system to the detriment of teeming millions and, therefore, they have become the protagonists of the system. A society composed of 70% illiterates living in rural backward area having some simple easily solvable problems by the common sense approach of local populace is being served with a highly complex time-consuming, cost-mounting, justice delivery system evolved over centuries for a cent per cent literate society. What a paradox? The utter failure of the system stems from the fact that it is an alien system unsuited to our genius. It has become static and nonfunctioning if not counter-productive. Both the Judges and the lawyers failed to suitably revise the system to suit the needs of a republican form of Government and egalitarian society with emphasis on socio-economic justice. We administer justice in a foreign language not understood by a very large number of litigants. If the litigant is present in the Court he hardly understands what is going on. The judgments are written in a foreign language and the seeker of justice hardly knows what has happened to his cause or controversy which he has brought before the Court, In search of justice he is chasing a mirage, in the process spending his hard-earned fortune. This is the basic draw-back and this aspect can be examined in meticulous detail but this is neither the place nor the environment for elaboration.

736. Examining first the contention whether an additional Judge is on probation during the period of his initial tenure or till he is offered a permanent vacancy, it must at once be said that in the case of a High Court Judge, a high constitutional functionary holding a high constitutional office the expression ‘probation’ is wholly inept and inappropriate and apt to prove misleading. Such words from the service jurisprudence would be of no assistance. One must keep in view the scheme envisaged by the Constitution for deciding the position of the additional Judge.

737. Before the scheme is examined the common error of executive and Judiciary in making appointments of High Court Judges for a period commencing from 1956 till today must be examined. Article 224 was not meant to provide an entry door for becoming a Judge of a High Court under Article 217. Article 224 was for a specific and specified purpose, When the Constitution came into force in January 1950 present Article 224A was Article 224. Article 224A enables the Chief Justice of a High Court with the previous consent of the President to request any person who has held the office of a Judge of a High Court to sit and act as a Judge of the High Court. It was believed that whenever work-load in the High Court temporarily goes up, retired Judges of the High Court may be requested to sit and act as Judges of the High Court and the problem of work-load in the High Court can be solved. In 1956 it was found that this system has not worked satisfactorily. This becomes clear from the ‘objects and reasons’ set out in the Bill seeking to amend the Constitution by inserting Article 224 in its present form. Therefore, the present Article 224 was introduced and as pointed out earlier, it was meant to confer power on the President to increase for the time being the number of Judges in a High Court and to appoint additional Judges to fill in the increased strength. Thus power can be exercised if one or the other of the two pre-requisites set out in Article 224 is satisfied, namely, temporary increase in the business of a High Court or by reason of arrears therein The Article was enacted to meet these two specific situations only. In practice it appears and not controverted by any one, in fact admitted, that the article was worked as if an entry in the High Court for a permanent judgeship is via Article 224, namely, by first being appointed as an additional Judge and then when a vacancy occurs in the permanent strength of the High Court, to be appointed as a permanent Judge. This has been invariably the practice save in rare cases ascertainable by miscroscope. Every one was ordinarily, first appointed as an additional Judge and in course of time even after once, twice or thrice being appointed as an additional Judge till the vacancy occurred in the permanent strength that one became a permanent Judge. This is clearly contrary to the intendment of Article 224, and the present malaise arises out of this impermissible, yet without exception or with rare exception, use of Article 224 both by the executive and the judiciary, This has also led to inaction on the part of the President in not reviewing regularly and at regular intervals the permanent strength of the High Courts. Even Chief Justices were unconcerned about the undesirable situation in that they have asked for increase in the strength of additional Judges. In 1979, Chief Justice of Delhi High Court even with 10 additional judges asked for two more without any attempt at reviewing the strength of permanent Judges. If permanent strength was reviewed from time to time the renewal of tenure of an additional Judge twice or thrice could have been avoided. If an additional Judge was appointed to deal with temporary increase in work and his term is renewed twice or thrice and the temporary increase has become a permanent feature of the High Court, what was needed was increase in the permanent strength of the High Court. It is unbecoming for a High Court Judge to be on two years’ tenure repeatedly. That is clearly contrary to what was intended by Article 224.

738. Ordinarily an additional Judge save in rare cases was always offered a permanent judgeship unless he himself wanted to opt out. In order to curb and thwart an undesirable practice of a person returning to the Bar after adoring the Bench for a short-time, a system of taking an undertaking from an additional Judge, that if offered he will accept the permanent judgeship was commenced upon a note of the former Chief Justice of India, Mr. Wanchoo, though the practice does not appear to be universal. The tendency to return to the Bar after adoring the Bench for some time was to be thwarted. The undertaking was devised to meet this situation. This would however show that save in rare exceptional case, first appointment was as an additional Judge. An additional Judge will have a fixed tenure and can safely return to Bar with a perceptible added advantage because it was felt that there was no other way except to offer first appointment as an additional Judge, and therefore a system of taking the undertaking was devised. But again save in rare exceptional cases an additional Judge on the occurring of a vacancy in the permanent strength was always offered a berth. From this invariable practice, a firm belief, therefore, developed that an additional Judge enters upon office with almost an unwritten albeit incontrovertible assurance to be appointed a permanent Judge. Howsoever strong the belief may be, it is not borne out by the constitutional provision. After all, the appointment was as an additional Judge within the constraints and limitation of Article 224 and no canon of construction would permit the Court to treat the appointment as one under Article 217. If, therefore, the tenure was of two years, on the expiry of it the appointment will have to be a fresh appointment and for making such a fresh appointment, consultation as ordained by Article 217 is inescapable. Once the consultation, starts, all possible hazards in the process of consultation cannot be wished away and the appointment has to be |afresh.

739. It would be at this stage worth-while to examine the submission that constitutional convention and practice Provide a reliable aid to construction of constitutional provisions. It was also urged that in interpreting a constitutional provision implication’s arising from the Constitution have to be borne in mind. The submission is that the Court should not dismiss the universal practice invariably followed for a quarter of a century in the matter of appointment of additional and permanent Judges of the High Court as a common error or common understanding of the scope, content and ambit of Article 224, but the Court must proceed on the basis that both the executive and the judiciary who have a vital role to play in the matter of appointment of additional and permanent Judges of the High Court unambiguously understood Article 224 to provide the only entry door for permanent judgeship and made recommendations leading to appointments on the clearest and unquestionable understanding that once an additional Judge is appointed in course of time when a vacancy arises in the permanent strength he would become the permanent Judge. In other words, from the day of his entry he is more or less a permanent Judge and there was no question of examining his merits and demerits on the expiration of each tenure during the period of his additional judgeship leading in a given situation to his non-appointment.

740. Constitutional interpretation has been a fruitful ‘subject of discussion amongst Judges, jurists and authOrs. Number of canons have been devised for interpretation. Language being, an imperfect vehicle of translating thoughts and intendments, when the legislature finishes its task and produces a legislation in more general terms, while applying its various provisions to cases and controversies brought before the Court, a debate always ensues as to what was intended by the legislature in using a certain expression. ‘A word is not crystal, transparent and unchanged it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used’, Holmes, J. in Towne v. Eisner, (1917) 245 US 418 at p. 425. Word when used in a certain context may mean a different thing than used in a different context and therefore, while construing particular word or expression in a statute it is better to read the statute as a whole and ask oneself the question: ‘In this state, in this context, relating to this subject-matter, what, is the true meaning of the word’ (1948-2 All ER 995 at p. 998). If this is true of an Act of Parliament, it is equally true of the fundamental law of the land, viz., the Constitution.

741. Aids to construction help in finding out the intendment of the provisions. It is the duty of the Court to ascertain the intendment of a provision which comes up for construction. What was the purpose in enacting the provision and whether it was to meet or remedy a certain situation or provide for a certain eventuality, are all relevant considerations in ascertaining the intendment of the constitution. Ascertain the underlying purpose and give such construction to the provision as would effectuate the purpose. One such aid, it was urged, is the prevalent conventions and constitutional practices. Where a Constitution has worked for a reasonably long time, conventions which grow up relevant to the constitutional provisions or the constitutional practice can be a torch-bearer in ascertaining the intendment of the provisions because over a period the provision has been so understood and worked that it can be safely said that it was correctly and wisely understood and accurately applied, Coupled with this is the fact that implications which arise from the structure of the Constitution itself or from the constitutional scheme may be legitimately made. An implication was raised from the federal character of the Australian Constitution in Lord Mayer, Councillors and Citizens of the City of Melbourne v. The Commonwealth (1947) 74 CLR 31 at p. 70, wherein it was observed that the intention is to be plainly seen in the very frame of the Constitution, namely, the federal character of the Constitution. As a corollary the provision contrary to the implications to be derived from the federal character of the Australian Constitution was challenged as ultra vires in State of Victoria v. Commonwealth of Australia 122 Commonwealth LR 353, wherein the State of Victoria had challenged the power of Parliament of the Commonwealth requiring the State to pay pay-roll tax upon wages paid by it to its employees in certain departments claiming that the legislation was contrary to the implications of the Australian Constitution. A question was raised in that case as under:

Does the fact that the Constitution is federal carry with it implications limiting the law making powers of the Parliament of the Commonwealth with regard to the States.

The question was answered in the affirmative both on principle and authority:

742. Similarly, in Commercial Cable Co. v. Govt. of Newfoundland (1916) 2 AC 610, the Privy Council read a limitation on the prerogative power of the Governor conferred by the Letters Patent imposed by the constitutional practice of the colony. The Privy Council again in British Coal Corporation v. The King 1935 AC 500 after referring to its Constitution under the Act for the Better Administration of Justice in His Majesty’s Privy Council and further referring to the provisions set out in the Act for the conduct of appeals, observed that the Judicial Committee as established by the Act after hearing the appeal could make a report of recommendation, to His Majesty in Council for his decision, the nature of such re port or recommendation being always read out in the open court. Proceeding further it was held that even if the Judicial Committee of the Privy Council is regarded as a judicial body or court, all it can do is to report and re commend to His Majesty in Council by whom alone the order in council, which Is made to give effect to the report of the Committee, is made. Having deter mined the legal position of the Judicial Committee, it was further held as under to which specific reference was made:

But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate Court of law, to which by the statute of 1833 all appeals within their purview are referred.

743. Similarly, in Re. Alberta Legislation, (1938) 2 Dominion LR 81 at p. 107 it was held that the Parliament of Canada possesses authority to legislate for the protection of the right of freedom of press. That authority, it was said, rests upon the principle that the powers requisite for the protection of the Constitution itself arise by necessary implication from the British North America Act as a whole. A little further it was observed that the provincial legislature is not entitled to interfere with the working of parliamentary institutions of Canada as contemplated by the provisions of British North America Act and the Statute of Dominion in Canada, Such limitation, it was held, is necessary in order to afford scope for the working of such parliamentary institutions and in this region of constitutional practice it is not permitted to a provincial legislature to do indirectly what cannot be done directly. This decision was followed in Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 Dominion LR 641 at p. 672.

744. In the State of South Australia v. The Commonwealth (1942) 65 CLR 373 at p 447, it was held that some implications arise from the structure of the Constitution itself, but it is inevitable also that these implications can only be defined by a gradual process of judicial decision.

745. In U.N.R. Rao v. Smt. Indira Gandhi a question was in terms raised that the Court should interpret Article 75(3) according to its own terms regardless of the conventions that prevailed in the United Kingdom, Rejecting this contention, the Court observed as under (at p. 1003 of AIR).

If the words of an article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are Interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a parliamentary system of government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.

This would show that in arriving at the true intendment of Article 75 the Court not only took assistance of the form of Government established in India by the Constitution but simultaneously referred to the conventions in the United Kingdom and other countries having similar political system being adjuncts of parliamentary form of Government.

746. Implication but not the splint arising from the Constitution is another aid to construction, After referring to some of the Canadian decisions, Sikri, C.J, pointed out in Kesavananda Bharati Sripadagalavaru v. State of Kerala that some of the Judges in Canada have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution, i.e. “with a Constitution similar in principle to that of the United Kingdom”. Examining the submission in that case about implied and inherent limitations on the amending power of Parliament, Shelat, J. recalled the statement that the rule is established beyond cavil that in construing the Constitution of the United States, “what is implied is as much a part of the instrument as what is expressed” (American Jurisprudence (2d.), Vol. 16, p. 251) and after reviewing a large number of foreign decisions it was observed that the concept of implications can be raised from the language and context of the various provisions (see p. 258), At page 316 Hegde, J. observed that implied limitations on the powers conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by consideration arising out of what appears to be the general scheme of the statute.

747. In Chapter III, Sir Ivor Jennings in The Law and the Constitution, refers to the conventions of the Constitution. At p. 80, the author observes as under:

Political institutions’, said John Stuart Mill, ‘are the work of men; owe their origin and their whole existence to human will. Man did not wake on a summer morning and find them sprung up. Neither do they resemble trees, which, once planted, ‘are aye growing’, while men ‘are sleeping’. In every stage of their existence they are made what they are by voluntary human agency’. But men being what they are, they tend to follow rules of their own devising; they develop habits in government as elsewhere, And when these men give place to others, the same practices tend to be followed. Capacity for invention is limited, and when an institution works well in one way it is deemed unnecessary to change it to see if it would work equally well in another. Indeed, people begin to think that the practices ought to be followed. It was always so done in the past, they say, why should it not be done so now? Thus within the framework of the law there is room for the 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.

Constitutional convention is broadly defined as rules of political practice which are regarded as binding by those to whom they apply but which are not laws as they are not enforced by the Courts (p. 121). It may be an aid to construction but not positive rule of law, breach of which is remediable by Court action. It must, however, be remembered that the conventions grow around and upon the principles of a written Constitution. The conventions generally grow where the powers of the Government are vested in different persons or bodies or where, in the words of Sir William Holdsworth, the Conventions of the Eighteenth Century Constitution. 17 Iowa Law Review, p. 162, there is a mixed Constitution. But conventions do presuppose the law and any convention contrary to the written context is of no validity. The conventions are built in the first instance, on the foundation of law but once they are established, they tend to form the basis for the law. It may, however, be noticed that these rules of law which are conventions are a mere matter of practice and their effect must change with the changing circumstances of national life. That apart what is sought is not enforcement of the convention in the Court but its being invoked as an aid to construction of Article 224. Does it help in that behalf? W. A. Wynes in Legislative, Executive and Judicial Powers in Australia, p. 29, foot note 20, noticed that in the Commonwealth v. Colonial Combing etc. Co. Ltd. (1922) 31 CLR 421 at Pp. 438-439, Isaacs, J., drew attention to the duty of the Judiciary to recognise and give effect to new positions and circumstances in the national life. The conventions of the Constitution, he said, are not to be omitted from construction in its interpretation.

748. Implications arising from the provisions of the Constitution, constitutional conventions and constitutional practice all stand on a different footing. A constitutional convention when spread over a long period, of immemorial antiquity, followed invariably becomes entrenched as a rule of law but any convention contrary to the written pro vision is of no validity. Implications may arise from the context in which a provision is placed or the use of the language in the provision or from the nature of the power claimed vis-a-vis the whole constitutional scheme. That was how implied limitations on the power of Parliament to amend the Constitution were spelt out in Keshavananda Bharati’s case . Constitutional practice may be spelt out as a course of conduct over a reasonably long period which may indicate how the authorities charged with a duty to implement the Constitution have worked out or implemented a certain provision of the Constitution.

749. To begin with as pointed out earlier, a constitutional convention must be founded on some provision of law. They provide ‘the flesh which clothes the dry bones of the law, they make the legal situation work, they keep in touch with the growth of ideas; a Constitution does not work itself, it is worked by men. It is an instrument of national co-operation and the spirit of co-operation is as necessary as the instrument. Conventions are rules elaborated for effecting that co-operation. (The Law and the Constitution by Sir Ivor Jennings, p. 81). As Open Heimer in the Constitution of the German Republic p. 9, observes, that ‘conventions which have already begun to quite a considerable extent not only to supplement, but also to modify, if not actually supersede express provisions’ grow within a short time. It would thus distinctly appear that any convention contrary to the provision of the Constitution and its basic intendment cannot be given effect to as a convention, Its genesis must be in the provision itself.

750. If Article 224 conferred power on the President to appoint Additional Judge only in the specified situations set out in the article and for a fixed limited duration beyond which even the President had no power to appoint, it cannot be said that because the way in which the article has been worked, a constitutional convention has grown up that every additional Judge right from the day of his entry irrespective of his two years’ tenure would be deemed to be appointed as a permanent Judge or would be entitled as a matter of right to a renewal of his tenure till a permanent vacancy. Such a construction of Article 224 would run counter to the plain intendment of the Constitution and no such convention can be spelt out as would pro tanto amend Article 224. Nor any such implication can be raised that an Additional Judge is deemed to be appointed as permanent Judge or he is entitled as of right to a renewal of his tenure till a permanent berth is found for him,

751. Frankly, there is some force in the submission that a practice has grown up for over last quarter of a century (1956-81) that whenever an additional judgeship is offered to a person, he accepts it in the reasonable behalf that in course of time he would get a berth as a permanent Judge. It may generate hope in him and his expectations could be said to be well founded and reasonable more so it is, save in rarest of rare cases, invariably done so far. At the minimal most he is entitled to be first considered for a fresh tenure of two years or when the permanent vacancy arises for appointment to that permanent vacancy before any rank outsider is considered given the situation that the pre-requisites which necessitated his initial appointment continue to exist.

752. No cases were pointed out to us that where there were additional Judges in the High Court and a permanent vacancy occurred someone was appointed who had not functioned as an additional Judge, An additional Judge was usually offered permanent judgeship. May be there might be some rare cases in which some fortunate few were directly appointed as permanent Judges but no case was brought to our notice where there were additional Judges in a High Court and a permanent vacancy occurred and overlooking the claims of all additional Judges either a member of the Bar or a District Judge was directly appointed to that permanent vacancy. Therefore, there is no gainsaying the fact that a practice was followed for over 25 years that an additional Judge was always first considered and he was entitled to be considered for a fresh tenure if there was no permanent vacancy and if there was a vacancy in the permanent strength, for being appointed as a permanent judge. A contention of the learned Attorney-General to the contrary that he has no priority, preference, weightage or right to be considered and that he is on par with any other man who can be brought from the market would be subversive of the constitutional scheme and must be rejected. An additional Judge who has worked for the period of his tenure has a weightage in his favour compared to a fresh appointee and any process of appointment while filling in a vacancy must commence with the additional Judge whose tenure has come to an end and has led to the vacancy.

753. Two consequential limbs of the same submission may be dealt with here. If Article 216 postulates fixing of a permanent strength of the High Court and review of the strength at regular intervals and if Article 224 enables the President to appoint additional Judges in the two contingencies mentioned therein, would it be open to the President to appoint an additional Judge when there is a vacancy in the permanent strength of the High Court. The constitutional scheme is that ordinarily there should be permanent Judges of the High Court. Article 224 is an enabling provision conferring power on the President to appoint additional Judges to meet a specific situation, namely, a temporary increase in the work of the High Court or the arrears in the High Court. Ordinarily, therefore, the Constitution envisages appointment of permanent Judges. Permanent Judges are appointed to deal with the regular work of the High Court and the strength is fixed keeping in view the institutions and disposals and minimum work-load which each Judge is supposed to handle. When permanent strength of the High Court is fixed and there is a vacancy, it would mean that for the routine work of the High Court the number of Judges is inadequate and, therefore, it is incumbent upon the President to fill in the vacancy unless it can be made out that the workload in the High Court does not justify the appointment. But if the permanent vacancy is not filled in and the President proceeds to appoint an additional Judge, which can only be done if there is a temporary increase in the work of the High Court or if there are arrears, it would mean that the regular work is not sufficient for the sanctioned strength of permanent Judges and vacancy may remain unfilled, an additional Judge is necessary as if temporary increase in the work of High Court or arrears cannot be dealt with by permanent Judges. Two situations cannot co-exist. Additional Judges can be appointed when the permanent Judges while dealing with the regular work of the High Court are unable to deal with such temporary increase in the work of the High Court or clear the arrears. If the permanent strength is reduced by not filling in a vacancy and it is considered not necessary to fill in such vacancy it would only imply that not only regular work of the High Court is being adequately handled but any other work in the High Court can also be handled by the number of Judges then working in the High Court. In such a situation appointment of additional judge cannot be justified and in the absence of preconditions set out in Article 224 the appointment of an additional judge would be plainly outside the purview of Article 224 and contrary to the intendment of Article 224. Therefore, when a permanent post is vacant an additional judge cannot be appointed.

754. But having said this, it most also be conceded that an additional Judge even if appointed, could not be deemed to be a permanent Judge. If the President appoints an additional Judge and specifies his tenure as two years in the warrant of appointment, it is not open to the appointee to ignore the tenure and to expect the appointment as being of a permanent Judge. A reference in this connection was invited to the Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd. (1918) 25 CLR 434 (Aus). Section 12 of the Commonwealth Conciliation & Arbitration Act provided for the appointment of a President. The provision was to the effect that “the President shall be appointed by the Governor-General from amongst the Justices of the High Court. He shall be entitled to hold office during good behaviour for seven years….” The Constitution provided for tenure of High Court Judges during good behaviour and they were not removable except by the Governor-General in Council on address from both houses of Parliament praying for such removal on specified grounds (see p. 72). The contention was that if the President was to be justice of the High Court and the tenure was only for a period of seven years, this was contrary to Section 72 of the Constitution and the appointment is invalid and that the appointment being non-severable from the main Act, the whole Act was invalid. The Chief Justice who presided over the Bench held that the word ‘appointed’ is used in the sense of assignment and the life tenure is not whittled down by making a specific appointment for a certain period. Views contrary to the view of the Chief Justice are also expressed but this decision hardly helps in resolving the problem posed in this case.

755. If the President even by a misconception of a situation, makes an appointment specified in Article 224 limited for a duration of two years, it is inconceivable that the appointee can ignore the tenure and claim to be appointed as a permanent Judge. Undoubtedly consultation for the purposes of Article 224 and for appointing a permanent Judge under Article 217 is of the same width and dimension and the constitutional functionaries involved in the process of appointment are all the same, none the less power of the President to appoint for a fixed duration in a given situation even if the situation is shown not that the President had some other power under some other Article and is deemed to have acted under that Article. In such a situation It may possibly appear that the initial appointment was bad. It was, however, urged that while purporting to appoint an additional Judge under Article 224 the clear and unmistakable intention was to appoint a permanent Judge, this intention cannot be defeated by use of such words as ‘additional’ and ‘for two years’. The Court must give effect to the intention. It was said that the Judge was appointed not because there was temporary increase in the work of the High Court or the arrears therein but to deal with the cases in the High Court and in such a situation the appointment has to be under Article 217. If it is so, the Judge would be deemed to be appointed a permanent Judge with the tenure prescribed in Article 217. The submission is that the Intention was to exercise power under Article 217 but by a mistaken understanding it was treated under Article 224 and the tenure was, therefore, limited to two years but this is done in disregard of the duty of the President under the Constitution, and the Court should not disregard the intention and must enforce the duty, Specific submission is that in a conflict between a qualified intention and an obligatory duty, the Court would enforce the latter. Reliance was placed on Sewpujan Rai v. Collector of Customs , wherein the Collector of Customs ordered confiscation of gold and imposed penalty of Rs. 10 lacs on payment of which gold was to be released. Penalty was levied with two conditions and it was conceded that he had no power to impose conditions. The question was whether the whole order was void, or two impermissible conditions could be severed and order upheld. This Court held that the impermissible conditions were severable and they were struck down and order was upheld. In this connection, reliance was also placed on the decision of Y. Mahaboob Sheriff v. Mysore State Transport Authority wherein the question was whether a permit granted for one year was according to law. Section 58(1)(a) read with Section 58(2) of the Motor Vehicles Act enabled the Authority to grant permit for a period not less than three years. It was urged that order granting permit was bad being outside the provision. This Court held that the intention to grant permit was manifest and giving effect to the intention directed the Authority to issue a permit for a period not less than three years and not more than five years as the Authority may specify. I fail to see how these would render any assistance in this case. Here the President has specifically set out in the warrant of appointment that the Judge is appointed as ‘additional Judge’ for ‘a period of two years’. Even if the prerequisite for exercise of power was absent and, therefore, it was an impermissible exercise of power under Article 224, there was no intention to appoint a permanent Judge which this Court by a deeming fiction can enforce, Doctrine of severability is not attracted. The intention not shown to be to appoint permanent, as two years’ tenure furnishes contrary indication the submission that Court must enforce it must be negatived.

756. I may then turn to the next submission incidental to the points under discussion. It was said that if an additional judge has to be appointed either for dealing with the temporary increase in the work of the High Court or for tackling arrears in the High Court the Constitution makers believed that the situation has reached such a stage that an additional judge if appointed for a period of two years would be able to bring relief. It may be that the problem may not be wholly solved within the period of two years but the reasonable expectation was that a period of two years would provide adequate length of time to the additional judge to deal with the problem for tackling which he is appointed. Therefore, Article 224 provides for a tenure not exceeding two years. By and large save with very recent rare exceptions the appointment of additional judge in the first instance has always been for two years. And it should be so, because no one is unaware of the three dimensional problem of arrears corroding the vitals of the justice delivery system and presenting a formidable threat to it. There is no shortcut and there are no readymade solutions and the problem cannot be overnight wished away. In fact, with sadness the agonising fact must be confessed that no serious efforts have been made to tackle the problem and whatever spasmodic or sporadic attempts have been made have proved counter-productive, It was, therefore, assumed that a period of reasonable duration such as two years would give adequate opportunity to an additional judge appointed for a specific task and the approach in appointment would be a result oriented approach. If this was the underlying assumption in enacting Article 224, the appointment of short-term duration of six months or in the two cases before us, of three months, is inconsistent with the intendment of Article 224 and unbecoming of the dignity of a High Court Judge. Article 224 confers power on the President. It is enacted for a specific purpose. There is an underlying purpose while conferring such power on the President. To effectuate that purpose hot only a power of appointment is given but the President is authorised to make such an appointment for a period not exceeding two years. If when making the appointment of an additional judge it must be deemed to have been assumed that there is such temporary increase in the work of the High Court or there are such arrears that it has become a compelling necessity to appoint additional judges to deal with the situation, the appointment for such a ridiculously short duration of three months or six months appears not only to be an exercise in futility but is inconsistent with the intendment of Article 224. Appointment under Article 224 can only be made as repeatedly pointed out, to meet the specific contingencies, Such appointment cannot be made for the purpose of making inquiry into the suitability, eligibility or fitness of the incumbent additional judge at the time of consideration of his appointment for a fresh term. In. this behalf both the judiciary and the executive are in the same bracket. In the case of Mr. S.N. Kumar and Mr. O.N. Vohra, the Chief Justice of India recommended an extension for a period of six months in order to gain time to make inquiries in respect of complaints which appear to have been mentioned by the Law Minister in the correspondence. This is utterly impermissible. Chief Justice of India could not have recommended extension of six months, not for dealing with temporary increase nor for tackling arrears, but for gaining time to complete his inquiry. The Law Minister in his turn presumably must have advised the President to grant extension for three months. Such short-term appointments are wholly inconsistent and contrary to the clear intendment of Article 224 and unbecoming of the dignity of a High Court Judge. I am not prepared to believe even on a hypothetical case that in foreseeable future a situation may arise when an appointment of an additional judge is necessary for such ridiculously short term of three months or six months to dispose of temporary increase in work or to tackle arrears. If such a situation can be imagined, better let that work be dealt with by permanent judges rather than appointing persons to such high constitutional office for a ridiculously short period.

757. To put the position beyond the pale of controversy, it must be emphasised, even at the cost of repetition, that whenever the tenure of an additional judge is about to expire, sufficiently in advance the process of consultation for considering his case for appointment as envisaged by Article 217 must start and it must proceed along the hitherto chalked out lines. It has to be completed sufficiently in advance before the tenure is to expire and a decision has to be taken. If the incumbent of the office is considered suitable for a fresh tenure, keeping in view the only two relevant considerations, namely, the existence of the temporary increase in the work of the court or the continued existence of the arrears for resolving or tackling which the judge was appointed, his fresh tenure, should be fixed. If on objective consideration it appears that the situation is not likely to improve even within a period of two years, normally the fresh tenure should be of two years unless a contrary legitimate decision verifiable on objective facts is reached that the problem can be resolved within a short period which should in no case be less than one year. One cannot appoint the lowest grade servants on such a short term duration of six months or three months. It violently hurts the dignity of a Judge of a High Court to be appointed for a period of six months or three months and that during this period he is not supposed to clear the arrears to deal with which he was appointed but during the period of three months either this executive or the Chief Justice of India will be holding their inquisitions to consider his future suitability, a decision which these two high constitutional functionaries could hot reach within a period of two years for which initially the additional judge was appointed. We emphatically declare that short-term extensions of three months or six months are beyond the intendment of Article 224. Ordinarily, as herein indicated the fresh tenure must be for two years subject to the overriding consideration that if an honest and legitimate opinion can be formed by all the constitutional functionaries that the temporary increase in the High Court or the arrears to tackle which the additional judge was appointed could be resolved to the satisfaction of all within a period of say one year, the duration can be of one year but not less than that in any case.

758. In passing it was briefly stated there can be a short term appointment when in a near future a vacancy in the permanent cadre of the High Court is likely to occur. That approach is hardly relevant because even if the additional judge is appointed, save for a period of one year, and a vacancy occurs within three months of his appointment, there is no bar in law in offering him the permanent appointment and if the work load still justifies, to appoint someone else as an additional judge.

759. The stage is now reached where it would be appropriate to deal with the scope and content of consultation as envisaged by Article 217. It may be recalled that Article 222 also provides for consultation with the Chief Justice of India when the President proposes to transfer a judge of a High Court to another High Court. The Question posed is whether consultation as envisaged by Article 217 and consultation envisaged by Article 222 is the same or there is some marked divergence in it. Mr. Seervai in terms said that scope and ambit of consultation with constitutional functionaries both under Article 217(1) and Article 222(1) is the same only content may, differ because the purpose of consultation under both the articles is ‘different, to wit, under Article 217, consultation is to be had for appointment as High Court Judge while under Article 222(1) consultation is for the purpose of transfer of a High Court Judge from one High Court to another High Court. There are a number of articles in the Constitution which provide for consultation with different authorities. Article 124(2) provides for appointment of a judge of the Supreme Court by the President after consultation with the Judges of the Supreme Court and of the High Court in States as the President may deem necessary and the proviso to Article 124(2) makes it obligatory on the President to consult the Chief Justice of India in case of appointment of a Judge other than the Chief Justice of India. The marginal note of Article 143 which confers advisory jurisdiction on the Supreme Court specifies the power of the President to consult Supreme Court Article 217 provides for consultation with the Chief Justice of the High Court, Chief Justice of India and the Governor of the State while making appointment of a Judge of the High Court, Article 222 provides for consultation with the Chief Justice of India before transferring a Judge of the High Court to any other High Court. Article 233 provides for appointment of the District Judges by the Governor of the State in consultation with the High Court. Article 234 provides for recruitment of persons other than District Judges to the judicial service in accordance with the rules made by the Governor in that behalf after consultation with the state Public Service Commission and with the High Court exercising jurisdiction in relation to the State, Article 320(3) makes consultation obligatory with the Union Public Service Commission and State Public Service Commissions, in respect of matters specified in the article. The word ‘consultation’ has thus been used in different contexts and different authorities are required to be consulted for different purposes before exercise of certain power. Obviously, therefore, the scope and content of consultation may vary from situation to situation. The word ‘consult’ has been defined to mean ‘to discuss something together, to deliberate’, deliberation being the quintessence of consultation. The word ‘consult’ would take its colour and its content and scope will depend upon the context in which it is used. If the consultation is for appointment all those relevant considerations which enter the verdict before an Appeal ment is made would be the subject-matter of consultation. If the consultation is for transfer of a High Court Judge under Article 222(1) the word ‘consultation’ would mean examination of all those relevant aspects to be presently mentioned including the consequences of transfer, Chandrachud, J. affirmed the observation in Chandra-mouleshwar Prasad v. Patna High Court , on what constitutes consultation within the meaning of Article 233(1). It reads as under (), “Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more cannot be said to have been issued after consultation.

This observation provides the content and ambit of the process of consultation, Though this observation has been made in the context of Article 233(1) but it is accepted as applicable to consultation to Article 222(1) and in my opinion it is good law even for Article 217(1). At another stage it was observed that deliberation is the quintessence of consultation’. That implies that each individual case must be considered separately on the basis of its own facts, Iyer, J, in his concurring opinion in Mr. Sheth’s case , recalling the observation in Chandramouleshwar Prasad’s case extracted hereinbefore, observed that consultation in order to fulfil its normative function must, be real, substantial and effective consultation based on full and proper materials placed before the constitutional functionaries. In the context of consultation for transfer he examined various facets on which consultation must be focused and concluded that the Government must forward every possible material to the Chief Justice of India so that he is in a position to give an effective opinion, Maybe, the opinion of the Chief Justice of India may not be binding on the Government but it is entitled to great weight and is normally to be accepted by the Government in order to avoid the charge that the power is exercised whimsically or arbitrarily, These observations on the scope and content of consultation in the context of Article 222 would mutatis mutandis apply to the scope and ambit of consultation in Article 217. To recall the words of Justice K. Subba Rao in R. Pushpam v. Stats of Madras 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 to enable them to evolve a correct, or at least, a satisfactory solution’, would provide a rational, legal and constitutional yardstick to measure and ascertain the scope and content of consultation as contemplated in Article 217(1). It must not be forgotten that the consultation is with reference to the subject-matter of consultation, and therefore, the relevant facets of the subject-matter must be examined, evaluated and opined upon to complete the process of consultation.

760. Reverting to Article 217(1), the consultation is for the purpose of appointment of a Judge of High Court. The constitutional functionaries to be consulted are the Chief Justice of the High Court, Governor of the State and Chief Justice of India. Attention must first be focussed on what are the relevant considerations apart from the qualifications prescribed in the Constitution while making a proposal for appointment of a High Court Judge. Tha questions, one would pose to oneself are; (i) does he satisfy the qualifications prescribed in Article 217(2), (ii) whether he is of sufficiently mature age which is generally considered a good guide form a sombre approach in a law court; (iii) is he of unimpeachable integrity; (iv) has he a spotless character (v) is he a man of reliable habits; (vi) what is his equipment in law; (vii)” does he subscribe to the social philosophy and values enshrined in the Constitution; (viii) does he suffer from any in-surmountable aberrations; (ix) does he disclose a capacity to persuade and be persuaded; (x) would he have a team spirit; (xi) has he a quick grasp, a smart intellect and a compassionate heart. These are only illustrative and not exhaustive, As pointed out earlier, the Chief Justice of the High Court who would ordinarily and generally speaking be the initiator of the proposal would evaluate the candidate in his mind from all these angles and set out his opinion in the proposal formulated by him, The State executive will focus on the aspects other than his legal acumen and equipment, his grasp, his ability to deal with complex legal problems being brought before him, because in that behalf the Chief Justice is more advantageously placed. Undoubtedly, on character and integrity with the resources at the command of the State it could express its opinion. If it has some other opinion which runs counter and contrary to what the Chief Justice of the High Court has stated, it must inform the Chief Justice of the High Court of whatever is in its possession and permit the Chief Justice of the High Court to react, After this two-way discussion has followed, the proposal may be sent to the Union Minister of Justice who in turn must pass it on to the Chief Justice of India, The Chief Justice of India, free from local, parochial, regional, caste considerations prevailing at the State level would in meticulous detail examine all aspects of the matter, If he has reliable sources for collecting further information if would be open to him to do so. If he collects something which appears to be not known either to the Chief Justice of the High Court or the State executive he may set out the same and refer the proposal back for the consideration of the aforementioned two authorities, After this exhaustive discussion — not expected to be the oral or telephonic discussion or personal discussion–there is a meeting of the minds on relevant aspects of the matter with possible differences of opinion, the same has to be dealt with by the Minister of Justice who may in turn give his advice, not examinable by the Court, to the President. The consultation has to be meaningful, purposeful, result oriented and of substance, Much water has flown below the bridges when initially it was said that when a duty is cast to consult the authority, one who has to consult, has to inform of its proposal to the authority to be consulted and wait for some time for reply and forget the whole thing. After the decision in Mr. Sheth’s case it is now the law of the land that wherever the President can exercise power in consultation with the Chief Justice of India or other constitutional functionaries, the consultation has to be on all relevant aspects which would enter the final verdict. All the parties involved in the process of consultation must put all the material at its command relevant to the subject under discussion before all other authorities to be consulted. Nothing can be kept back. Nothing can be withheld, Nothing can be left for the eye of any particular constitutional functionary. To recall the words of Justice Iyer in Mr. Sheth’s case 1978-1 SCR 433 at p. 506. , all necessary facts in support of the proposed action of transfer must be communicated to him and all his doubts and queries must be adequately an-) swered by the Government. The President has, however, a right as rightly conceded by Mr. Seervai upon consideration of all relevant facts to differ from the other constitutional functionaries for cogent reasons and take a contrary view. Chandrachud,- J. in his Judgment stated as under:

Article 222(1) which requires the President to consult the Chief Justice of India is founded on the principle that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief justice of India who, by training and experience, is in the best position to consider the situation fairly, competently and objectively. But there can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion, If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President, the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter, of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive consultation.” So far there is no controversy.

761. The learned Attorney-General, however, contended that the consultation is obligatory when the president proceeds to exercise his power of appointment but in the case of non-appointment consultation is not obligatory. There is an apparent fallacy in this submission. This argument proceeds on the erroneous assumption that there is something like a process of appointment and a distinct and independent process of non-appointment. Can one start a process of non-appointment either in case of a fresh appointee or in case of a fresh tenure of an additional judge who has already served as High Court judge for the period for which he is appointed by the President under Article 224? What has to start is a process of appointment. The Chief Justice when there is a clear vacancy, has to initiate the proposal for appointment. He may think of selecting someone from the Bar or from the subordinate judiciary. But what he initiates is a proposal for appointment. It is unthinkable that the Chief Justice of High Court would start a proposal for non-appointment for the first time. Such, a situation is possible in case of an additional judge, an aspect to be presently examined. But save such a situation what happens is that the Chief Justice of the High Court thinks of certain names and ultimately reaches his own decision and initiates his proposal for appointment. This is a process of appointment. The proposal is forwarded to the State executive as consultation with the Governor is obligatory. Assuming the Governor does not agree, is it that the further examination of the proposal must come to an end? That is not the constitutional scheme, The Governor may disagree or set out his valid reasons for disagreeing with the proposal of the Chief Justice but he cannot put an embargo on further examination of the proposal by the other constitutional functionaries. If the view advanced by Attorney General that once one of the constitutional functionaries does not assent to the proposal the proposal falls there and cannot be further examined is accepted, it would be putting the power of veto on a constitutional functionary only entitled to be consulted. On a true interpretation of Article 217, the proposal must move further. It must reach the Chief Justice of India and the Minister of Justice. There might be differences of opinion as they have surfaced in the case of Mr. S.N. Kumar and Mr. O.N. Vohra. That is inevitable when four constitutional functionaries are involved in the decision making process. Ultimately the President may not accept the proposal and drop the proposal resulting in non-appointment. The non-appointment is the end product of a process of appointment. There is nothing like an independent process of non-appointment.

762. This aspect becomes vital in the case of additional judge. When initial term for which the additional judge was appointed is about to expire, if one can legitimately think of a process of non-appointment, the Chief Justice of the High Court may sit silent till the last day and the judge walks out. Does he have a veto sub silentio over other constitutional functionaries? The answer is an emphatic No. It must be the obligatory duty of the Chief Justice to initiate the proposal. Maybe, his initiation of the proposal may start with a recommendation that he is not in favour of a fresh term for the concerned additional judge. He is entitled to express his opinion. Proposal has, however, to be proceeded further and must be sent to the Governor of the State who with his own opinion endorsed in the proceeding should forward the same to the Minister of Justice and “who in turn must send if to the Chief Justice of India, NO constitutional functionary merely entitled to be consulted has a right to kill the proposal on his own. If there are differences of opinion qua a person amongst the three constitutional functionaries entitled to be consulted, it is inevitable in the very scheme of things that the President will have to choose keeping in view the fundamental assumption underlying this complex scheme that the best must be appointed and the doubtful must be eliminated. Therefore, there is nothing like a process of non-appointment in respect of which consultation can be eschewed.

763. How far the provision contained in Article 124 would be helpful in ascertaining the scope of consultation in Article 217 as also the contention about primacy of the opinion of the Chief Justice of India and the response to the argument on behalf of the respondents that the three constitutional functionaries to be consulted are co-ordinate authorities. In fact, reference to Articles 124 and 126 is only incidental because the construction of these two articles did not figure directly in the contentions canvassed in these cases. Attention was drawn to them to point out that there are situations envisaged by the framers of the Constitution where the President, the highest executive in the country, may proceed to appoint Chief Justice of India, the highest, at the apex of the judicial hierarchy, without consultation with any functionary in the judicial branch of the State. Article 124 provides for establishment and Constitution of Supreme Court, Sub-article (2) provides that 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 States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. There is a proviso which is material, It reads as under;–.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Sub-article (2) of Article 124 which provides for appointment of every Judge of the Supreme Court will comprehend appointment of Chief Justice of India also. Incidentally it was also pointed out that upon a superficial view of Article 124, Chief Justice of India may be appointed by the President without consultation with any functionary in the Judicial branch. Article 126 caters to a situation where an Acting Chief Justice of India is required to be appointed. It provides that when the office of the Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other judges of the Court as the President may appoint for the purpose.

764. Now, power is conferred on the President to make appointment of judge of Supreme Court after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. The submission is that the expression ‘may deem necessary’ qualifies the expression ‘confutation’ and that if he deems otherwise the president can proceed to make appointment of the Chief Justice of India without consultation with any of the judges of the Supreme Court and of the High Courts. In other words, it was submitted on behalf of the respondents, the President has a discretion to consult or not to consult Judges of the Supreme Court and High Courts before making appointment of Chief Justice of India. It was pointed out that where consultation is obligatory it is specifically provided and reference was made to the proviso extracted hereinabove wherein it is stated that it would be obligatory upon the president to consult the Chief Justice of India before making appointment of a judge of the Supreme Court other than the Chief Justice of India. Undoubtedly, the proviso leaves no option to the President but to consult the Chief Justice of India while making appointment of a Judge of the Supreme Court other than the Chief Justice of India, but it is rather difficult to accept the construction as suggested on behalf of the respondents that in making appointment of the Chief Justice of India the President is at large and may not consult any functionary in the judicial branch of the State’ before making appointment of Chief Justice of India. The expression ‘may deem necessary’ qualifies the number of judges of the Supreme Court and High Courts to be consulted. What is optional is selection of number of judges to be consulted and not the consultation because the expression ‘shall be appointed after consultation’ would mandate consultation. An extreme submission that the president may consult High Court judges for appointment of the Chief Justice of India omitting altogether Supreme Court judges does not commend to us, because the consultation with such of the judges of the Supreme Court and of the High Courts would clearly indicate that the consultation has to be with some judges of the Supreme Court and some judges of the High Courts. The conjunction and is clearly indicative of the intendment of the framers of the Constitution. If there was disjunctive ‘or’ between Supreme Court and High Courts in Sub-article (2), Article 124 there could have been some force in the submission that the President may appoint Chief Justice of India ignoring the Supreme Court and after consulting some High Court judges. Undoubtedly, Sub-article (2) does not cast an obligation to consult all judges of the Supreme Court and all judges of the High Courts but in practical working the President in order to discharge his function of selecting the best suitable person to be the Chief Justice of India must choose such fair sprinkling of Supreme Court and High Court judges as would enable him to gather enough and relevant material which would help him in decision making process. Mr. Seervai submitted that this Court must avoid such construction of Article 124 which would enable the President to appoint Chief Justice of India without consultation with any judicial functionaries. That is certainly correct. But then he proceeded to suggest a construction where, by a constitutional convention, any necessity of consultation would be obviated and yet the executive power to be choosy and selective in appointment of Chief Justice of India can be controlled or thwarted. He said that a constitutional convention must be read that the senior-most amongst the puisne Judges of the Supreme Court should as a rule be appointed as Chief Justice of India except when he is physically unfit to shoulder the responsibilities. This constitutional convention, it was said, when read in Article 124(2) would obviate any necessity of consultation with any functionary in the judicial branch before making appointment of Chief Justice of India and yet would so circumscribe the power of the president as not to enable the executive to choose a person of its bend and thinking. In this very context it was pointed out that Article 126 permits the President to appoint even the junior-most judge of the Supreme Court to be an Acting Chief Justice of India and it was said that such an approach or such construction of Article 126 would be subversive of the independence of the judiciary. It was said that if the junior-most can be appointed Acting chief Justice of India, every Judge in order to curry favour would decide in favour of executive, And as far as Article 124 is concerned it was said that if the convention of seniority is not read in Article 124(2), every judge of the Supreme Court would be a possible candidate for the office of Chief Justice of India and on account of personal bias would be disqualified from being consulted. There is no warrant for such an extreme position and the reflection on the judges of the Supreme Court is equally unwarranted. On the construction as indicated above there will be positive limitation on the power of the President while making appointment of Chief Justice of India and it is not necessary to read any limitation on the power of the President under Article 126 while making appointment of a judge of the Supreme Court as Acting Chief Justice of India. But the observation is incidental to the submission and may be examined in an appropriate case. And the question of construction is kept open.

765. If it is held that an additional Judge before he is not appointed for a fresh term on the expiry of his initial term of appointment has a weightage in that he has a right to be considered before he is dropped and that this consideration must proceed along the line of consultation under Article 217 with three constitutional functionaries and if in the ultimate analysis he is not appointed without completing the process of consultation, is the decision open to Judicial review? Simultaneously, the question would be whether in the case of a first appointment from the Bar when the Chief Justice may proceed to cast his glance on the Bar for selecting the best person and initiate the proposal for appointment of a particular person which gets stuck up or dropped before completing the process of consultation, is such a decision subject to judicial review? Is the Court in a position to grant any relief? There is no doubt in my mind on one point that whenever a proposal for appointment is initiated by any of the constitutional functionaries before it can be killed at any stage the process of consultation must go through in its entirety. When I say that the process of consultation must go through in its entirety mean that the initiator of the proposal must forward the proposal to other constitutional functionaries according to the channel and the proposal must reach ultimately the President. It is not open to any of the constitutional functionaries entitled to be consulted to sit tight over the proposal without expressing opinion on the merits of the proposal and by sheer inaction kill the proposal. Viewed from this angle when a term of additional Judge is about to expire it must be deemed obligatory on the Chief Justice of the High Court in which the additional Judge is functioning to initiate the proposal very much in time for completing the process of consultation through various stages before the period of initial appointment expires. Maybe, that the Chief Justice is not willing to recommend him for his own reasons. He may say so and forward his own view through the appropriate channel of communication for consultation. The Chief Justice of the High Court has no veto by sheer inaction to deal with the fate of an additional Judge. That is not the role assigned to him and he cannot arrogate the same to himself by own inaction. It may be that in case of a fresh appointment the Chief justice may not initiate the proposal at all because he may not be inclined to fill in the vacancy. But it is equally possible that in such a situation any other constitutional functionary entitled to be consulted in the matter of appointment of a Judge of the High Court can initiate the proposal and the proposal must move along and reach each constitutional functionary entitled to be consulted ultimately culminating in the proposal reaching the President with all the collected material in the process of consultation. So far there is no controversy. The question is, if in case of an additional Judge in whose favour there is a weightage and he is entitled to be considered as held above, a proposal is killed or an affirmative decision is reached not to appoint him without completing the process of consultation in its letter and spirit, would the additional Judge be entitled to question the validity of the decision and would the decision be subject to judicial review. The answer is in the affirmative. This right to question the decision and the power in the Court to grant relief whatever may be the form in which the relief may be moulded, flows directly from the right of the additional Judge to be considered for being appointed for a fresh term or as a permanent Judge, Right to be considered for a further term or as permanent Judge necessitates, full and effective consultation. Any drawback, defect or deficiency in the process of consultation may Invalidate the decision. Such invalid decision when questioned, the court may not be able to direct appointment, but the court can certainly give a direction to complete the process of consultation which may leads to a different result because the assumption is that high constitutional functionaries involved in the process of consultation will act bona fide and in the highest tradition of fair administration. If the decision is shown to be based on extraneous or irrelevant considerations or mala fide such executive decision is always open to judicial review. I need not affirm this well-established proposition by precedents. The case of a seniormost District Judge may be on par with the additional Judge. But the same cannot be said for a fresh appointee. He was not entitled to be appointed. He had no right to the post. When a person is being selected from the Bar, even if a proposal is initiated and is killed without completing the process of consultation there being no right in such person to the post or he is not entitled as a matter of right to be appointed, the decision not to appoint him will not be a subject-matter of judicial review, because it is not possible to grant him any relief.

766. Having examined the true meaning and effect of the relevant articles of the Constitution and keeping in view what is discussed hereinabove, it is now time to turn to the two petitions, one filed by the four Bombay Advocates brought before this Court in Transferred Case No. 22/81 and the second filed by Shri V.M. Tarkunde in the High Court of Delhi and brought before this Court in Transferred Case No. 20/81. These two cases specifically challenge the constitutional validity of the circular dated March 18, 1981, sent by the Law Minister. Government of India, to the Governor of Punjab and the Chief Ministers of all States in India, and secondly granting of short-term extension to three Judges of Delhi High Court, Sarvashri O.N. Vohra, S.N. Kumar and S.B. Wad, and subsequently not appointing Shri O.N. Vohra and Shri S.N. Kumar by not granting them a fresh tenure of High Court Judge-ship.

767. Law Minister appears to have stirred up the hornet’s nest by the impugned circular dated March 18, 1981. This circular in its preamble recites that repeated suggestions have been made to the Government by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the Judges of a High Court should as far as possible be from outside the State in which the High Court is situated. With a view to taking first step towards this goal the circular was issued. The circular desired the Chief. Minister of each State and the Governor of Punjab to obtain from all the additional Judges working in the High Court of the State their consent to be appointed as permanent Judges in any other High Court in the country. An opportunity was given to such Judges to name three preferences in which each of them would like to be appointed as permanent Judge, A further request was that whenever in future a proposal is made for initial appointment as a High Court Judge it must be accompanied by the consent of the person so recommended to be appointed to any other High Court in the country coupled with the preference limited to three. It was made abundantly clear that option to give preference does not imply on the part of the Government commitment either to appoint the person concerned or to appoint him necessarily at anyone of the three preferences. A copy of the letter was also sent to the Chief Justice of each High Court. Constitutional validity of this circular is questioned in the petition filed by Shri Iqbal M. Chagla and others. The submission is that with a view to circumventing the ratio in the majority judgment in Mr. Sheth’s case this is a covert attempt at transferring Judges under coerced consent. The web of the argument was woven around the alleged covert attempt by the circular to transfer each Additional Judge to a High Court other than the High Court in which he is functioning. The circular was read and re-read before the Court, Having examined it with microscopic meticulousness I find it impossible to read any overt or covert attempt at transferring Judges from one High Court to other High Court by this Circular. There is not even a whisper of transfer in the circular, But in this connection our attention was invited to the statement made by Law Minister in connection with calling attention motion on the impugned circular in Lok Sabha on April 16. 1981. In course of the discussion Law Minister appears to have stated that if there is a complaint against an additional Judge, ‘it has to be examined on merit and a decision taken. The decision could be either to drop a person based on evidence or to see if he could be transferred. Lok Sabha Debates Fifth Series, Vol. XVI, No. 42. Column 271: At a later stage it would be made abundantly clear that transfer power conferred by Article 222 cannot be exercised by the executive to punish a Judge because of complaints against him which may on enquiry he found to be of substance. But that is another aspect, Circular is not devised as a weapon of mass transfer outside the Constitution. But use of word ‘transfer’ in the discussion cannot be read turn out of context. A little later at column 273 Law Minister states that Chief Justice of India inquired whether it was the intention of the Government to transfer each and every Judge and this showed that Chief Justice of India was labouring under a mistaken impression that circular was devised for mass transfer but Law Minister explained to him that it is not a case of transfer at all but it is a case of fresh appointment and it is not the intention ‘to appoint every Additional Judge outside.’ The later part of the statement has raised another crop of controversy to be presently dealt with but there is no whisper of transfer in the circular. As has been pointed out earlier, an additional Judge has a maximum tenure of two years. At the end of two years he gets a fresh appointment either as a permanent Judge or an additional Judge for a further period of two years. The consent for fresh appointment is a must. It is open to an additional Judge whose tenure comes to an end to decline the fresh appointment at least in the High Courts where undertaking is not taken to accept permanent appointment, if offered. If he is, therefore, to be appointed again, necessarily it can be done with his consent. The consent to be obtained is of additional Judge. Additional Judge is now being told that, it is possible that he may be appointed in some other High Court, and that therefore, while giving consent for being appointed for a fresh term or as permanent Judge he is informed that he may be appointed in some other High Court and that he may give his consent with the knowledge of it. The fresh appointment is not a transfer. In fact, in the course of this judgment it will be succinctly thrashed out that a Judge who is transferred cannot be said to be appointed afresh to the High Court to which he is transferred, Once it is held that the circular was not a covert way of transferring a Judge because transfer was not even on the distant horizon, the whole edifice of argument built over the decision in Mr. Sheth’s case tumbles down. To be specific, a fresh appointment cannot be bracketed with a transfer more so when the submission that transfer implies fresh appointment has been rejected in the past and is being rejected by this judgment. Consent is sought from an additional Judge whose tenure is about to expire and to whom a fresh tenure is to be offered. Ipso facto it will be a fresh appointment. Initial tenure having come to a close, he is offered a fresh appointment, in another High Court. It being a fresh appointment, it is being done with his consent. In case of such a fresh appointment one cannot say that the additional Judge is transferred on the expiry of 1982 S.C./31 II G-23 his first tenure, to another High Court where he is appointed afresh with a fresh tenure. The concept of transfer is foreign to the situation. Once the alleged noxious feature of transfer being in the circular is taken out, there is nothing in the circular which would be in contravention of any particular constitutional provision.

768. It was also stated that the expression ‘obtain’ in the circular has the element of coercion and a consent ceases to be consent if it is obtained under coercion. It was said that consent and coercion go ill together because forced assent would not be consent in the eye of law. It was said that the threat implicit in the circular becomes evident because the Chief Minister, the strong arm of the executive is being asked to obtain consent. If every little thing is looked upon with suspicion and as an attack on the independence of judiciary, it becomes absolutely misleading. Law Minister, if he writes directly to the Chief Justice or the Judge concerned, propriety of the action may be open to question. Chandrachud. J. has warned in Mr. Sheth’s case that the executive cannot and ought not to establish rapport with Judges (p. 456 CD) (of SCR): (at p. 2349 of AIR). Taking this direction in its letter and spirit, the Law Minister wrote to the Chief Ministers. The Chief Minister in turn was bound to approach the Chief Justice. This is also known to be a proper communication channel with Judges of High Court. In this context the expression ‘obtain’ would only mean request the Judge to give consent if he so desires. If he gives the consent, well and good, and if does not give, no evil consequences are likely to ensue. I am not impressed by the submission of the learned Attorney-General that one who gives consent may have some advantage over the one who does not. I do not see any remote advantage and if any such advantage is given and if charge of victimisation is made out by the Judge not giving consent, the arm of judicial review is strong enough to rectify the executive error;

769. it was, however, said that what is not stated in the circular is more objectionable and of devastating effect than what is stated. It was urged that omission to mention in the circular that one who would not give consent would not suffer any evil consequences or would not be placed at a comparative disadvantage to one who gives consent, and this would precisely convey a threat to the judge either to give consent or suffer consequences because the negative assurance is not offered. That is hardly the correct way of reading the circular. Let it be noted that no positive advantage was to accrue to one who gives his consent, If any positive advantage was to be given to one who gives consent and if it had been spelt out, there would have been some force in this submission but mere omission to mention any evil consequences flowing from not giving consent would not necessarily imply that such would be the case. Similarly, the statement in the circular that giving an opportunity to indicate preferences would not imply that the Government would be bound to give the additional Judge an appointment or he would be at least given a station of his choice out of the three preferences indicated by him would mean that while unilaterally obtaining consent on one hand, there was no quid pro quo that the appointment would be given. This is clearly reading the circular with coloured glasses and the submission is unwarranted by the language used in it. If an option to indicate preferences is given and option is exercised, undoubtedly that by itself cannot obligate the Government to appoint an additional judge for a fresh term or a new entrant either as additional or a permanent judge, because various factors will have to be taken into consideration over and above his consent and preferences in making the appointment. Consent is asked for at a stage prior to the decision to appoint is taken. Therefore, this caution was absolutely necessary and has been rightly stated that it implies any promise to do a certain thing. It was then urged that if every additional judge was not to be posted outside the State, the executive will have an opportunity to pick and choose, favourites protected, dis favourite pushed out and this would strike a heavy or a near fatal blow at the independence of judiciary. Apprehension voiced is utterly unwarranted because in every appointment of an additional judge to permanent judge in any High Court the chief Justice of India is to be consulted and his views would always receive the weight they enjoy. Therefore, once Chief Justice of India gives his considered opinion with respect to every proposal, the element of picking and choosing is effectively curbed or controlled. With these observations, I broadly agree with the view taken by Bhagwati J. in his judgment that there is nothing in the circular which would render it constitutionally invalid.

770. Turning now to the petition filed by Shri V.M. Tarkunde in which Shri S.N. Kumar has been joined as respondent 5 and who has participated in the proceedings questioning the validity of the short term extension granted to him and his subsequent non-appointment. Shri Kumar was appointed an additional judge of Delhi High Court for a period of two years by a Presidential Notification dated March 6, 1979. His term was to expire on March 6, 1981. The Chief Justice of Delhi High Court by his letter dated February 19, 1981, addressed to the Law Minister, did not recommend an extension for Shri Kumar. While stating that the pendency in the Court still justified the appointment of additional judges, he considered it his painful duty not to recommend Shri Kumar for three reasons: (i) that there have been serious complaints against Shri Kumar both orally and in writing and on examination he was of the opinion that the ‘complaints were not without basis’; (ii) responsible members of the Bar and some of his colleagues whose names he was reluctant to mention have also complained about Shri Kumar; (iii) that Shri Kumar has also not been very helpful in disposing of cases. He said that he has no investigating machinery to conclusively find out whether the complaints were genuine or not but all the same the complaints have been persistent. A copy of this letter was sent to Chief Justice of India. Response of the Chief Justice of India as evident from his note dated March 3. 1981, and his letter dated March 14, 1981, was that he would like to look carefully into the charges against Shri Kumar because in his view the letter of Chief Justice of Delhi High Court dated February 19, 1981, ‘was too vague to accept that Shri Kumar lacks integrity’. Consistent with his desire to look carefully into the charges and to gain time for the came he recommended that the term of Shri O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad be extended for six months. This is how the ball was set rolling for short term extension. The duration for the which extension was to be given and the reasons for such short term extension are both contrary to the mandate of Article 224 as has been pointed out earlier. As a matter of fact, taking cue from the recommendation of the Chief Justice of India, the Law Minister improved upon it by granting extension of three months which would expire on June 6, 1981. To continue with the Chronology, by the letter dated March 19, 1981, the Law Minister conveyed to the Chief Justice of Delhi High Court the reaction of the Chief Justice of India to the observations made by the Chief Justice for not recommending extension of Shri Kumar especially the charge of vagueness and requested the Chief Justice to offer his comments on the question of continuance Or otherwise of Shri Kumar in the light of the view expressed by the Chief Justice of India. On March 28, 1981, the Chief Justice of Delhi High Court replied to the letter dated March 19, 1981, of the Law Minister. In this letter the Chief Justice of Delhi High Court informed the Law Minister that he had since received a letter from the Chief Justice of India asking him to furnish him with “details and concrete facts in regard to the allegations against Justice Kumar”. This has reference to the letter of Chief Justice of India dated March 14, 1981, to Chief Justice of Delhi High Court. He proceeds further to state that ‘he has since had an opportunity to discuss the entire matter in detail with the Chief Justice of India’. This sentence was relied upon by the learned Solicitor-General to submit that the Court should note that prior to March 28, 1981, the Chief Justice of Delhi High Court met the Chief Justice of India and discussed the entire matter in detail with the Chief Justice of India with reference to the recitals in his letter dated February 19, 1981. He said that read in juxtaposition, the only permissible inference is that at this meeting there was full and elaborate discussion with regard to what Chief Justice of Delhi High Court had written in his letter dated February 19, 1981, by which he had declined to recommend the extension of the term of Shri Kumar. It was, therefore, said that the three reasons which prompted the Chief Justice of Delhi High Court not to recommend Shri Kumar must have been thoroughly discussed and thrashed out because the expression ‘entire matter in detail’ would leave no room for doubt that nothing was withheld, nothing was assumed and every aspect was gone into The Chief Justice of Delhi High Court proceeds further to state that after this discussion which appears to have taken place on March 26, 1981, he addressed a letter dated March 28, 1981, to the Chief Justice of India, a copy of which was annexed to the letter dated March 28, 1981, to the Law Minister. Thus on March 28, 1981, the Chief Justice of Delhi High Court wrote two letters, one to the Law Minister and another to Chief Justice of India and a copy of the letter to Chief Justice of India was annexed to the letter addressed to the Law Minister. Reverting to the letter dated March 28, 1981. written by the Chief Justice of Delhi High Court to the Chief Justice of India, it may be noted that in this letter the Chief Justice of Delhi High Court in terms says that since receiving the letter dated March 14. 1981, with regard to Mr. Justice Kumar, he had also had an opportunity to discuss this ‘delicate matter’ with the Chief Justice of India. He refers to the three points made by him in his letter dated February 19, 1981, which means that at the meeting on March 26, 1981, the very three points referred to by the Chief Justice of Delhi High Court in his letter dated February 19, 1981. came up for discussion and the discussion was in details and the matter is styled as delicate because it involved the painful task of talking about the integrity of a colleague. But there is a further averment in the letter which leaves no room for doubt that during this meeting integrity and general conduct of Shri Kumar was discussed between them. With regard to the other point about Shri Kumar not being helpful in the work of the High Court he appears to have enclosed a statement of disposals of Shri Kumar. Even in this letter it is conceded that the Chief Justice of Delhi High Court has no investigating agency of conclusively find out whether the complaints are genuine or not. Then he proceeds to make a point that in such a delicate matter as reputation of a colleague working in the High Court, ‘there would be some who would support the allegations and there will be some who would refute them’, and, therefore, an affirmative decision of a conclusive nature is by its very nature not possible. The Chief Justice of Delhi High Court also noticed the divergence of opinion that may be expressed by different people. One thing that emerges clearly from this correspondence is that question of character and integrity of Shri Kumar came up for detailed discussion between the Chief Justice of Delhi High Court and the Chief Justice of India at their meeting on March 26, 1981. I propose to ignore any other complaint against Shri Kumar or inadequacy of his disposals because these aspects are not relied upon for non-appointment of Shri Kumar. Ultimately, the decision not to appoint him was founded upon his reputation about integrity. On April 15, 1981, the Law Minister wrote to Chief Justice of Delhi High Court requesting him that it may be that he may not have investigating machinery to conclusively establish the truth of the complaints against Shri Kumar, nevertheless he must have had some material which provided the basis on which he concluded that Shri Kumar’s reputation for integrity was not above board and recommended that he may not be continued, and it would be necessary for the Government to have the material and his comments. There is some reference to a complaint by Shri Sabir Hussain against Shri Kumar in this letter but I propose to ignore it because it is hardly relevant save and except saying that it was relied upon by the learned Solicitor-General to urge that the Chief Justice of Delhi High Court had acted most objectively and in a wholly unbiased manner. That may come later on.

771. In the meantime on April 22, 1981, a writ petition was filed by Shri V.M. Tarkunde in the Delhi High Court questioning the validity of the Circular of the Law Minister dated March 18, 1981, and in this writ petition, inter alia, relief was sought in the form of a direction to convert 12 posts of additional judges in Delhi High Court into permanent judges and to appoint Shri N.N. Goswami, Shri Sultan Singh and Shri O.N. Vohra as permanent judges and to appoint Shri S.N. Kumar and Shri S.B. Wad, additional judges of Delhi High Court for a full term of two years. By an order made by this Court on May 1, 1981, this case stood transferred to this Court, when the matter was pending before this Court an order was made on May 8, 1981, directing the Union of India to decide not less than 10 days before June 6, 1981, whether any of the three additional judges which included Shri S.N. Kumar should be appointed for a further term as additional judge or they should be appointed as permanent judges or otherwise.

772. In the meantime on May 7, 1981, in response to the letter dated April 15, 1981, of the Law Minister, the Chief Justice of Delhi High Court has written a long letter and which has been the subject-matter of intensely ferocious controversy both as to the significance of its contents, propriety of the request contained in the letter not to show the same to the Chief Justice of India and the violation of the constitutional mandate of consultation as prescribed by Article 217, in the letter not being shown to the Chief Justice of India enabling him to offer his comments and taking a decision not to appoint Shri Kumar. The letter dated May 7, 1981, is a long epistle. At the top it is mentioned “Secret (for personal attention only)”. The Chief Justice of Delhi High Court refers to his meeting with the Chief Justice of India on March 26, 1981, and then proceeds to state that as is desired by him, he wrote his letter dated March 28, 1981, a copy of which was forwarded to the Law Minister. The expression ‘as desired by him’ has been a subject-matter of rival contentions. The learned Solicitor-General urged that this statement clearly conveys that the Chief Justice of India himself desired after discussion, at the meeting on March 26, 1981, that the Chief Justice of Delhi High Court should not refer to the details of discussion and, therefore, wrote his letter dated March 28, 1981. to the Law Minister in abstruse terms. The specific suggestion is that even in the letter dated March 28, 1981, the Chief Justice of Delhi High Court did not furnish details to the Law Minister as it was so desired by the Chief Justice of India. Then be proceeds to state that somewhere early in May 1980. one of his colleagues met him and said that he was rather perturbed about information with him to the effect that if a substantial amount was paid to Shri Kumar, suits brought by a particular party against an insurance company would be decided in favour of the party. The Chief Justice states that he did not pay much attention to the earlier reports but when this was brought to his notice and he not being the Chief Justice at that time, he thought that after summer vacation to save Shri Kumar from any embarrassment, he should be put on a jurisdiction other than original jurisdiction and accordingly when he became the Acting Chief Justice and constituted the Benches for the second half of 1980, Shri Kumar was assigned to a Division Bench on the appellate side. He then proceeds to state that even though Shri Kumar was assigned the work of the Division Bench, he carried with him amongst others, three suits Nos. 1409 of 1979, 1417 of 1978 and 1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt. Ltd. against the New India Assurance Co. Ltd. He further states that in August 1980 the same colleague talked to him and another colleague joined saying that doubts were being expressed about the integrity of Shri Kumar vis-a-vis the aforesaid cases and some others. As the Chief Justice was an Acting Chief Justice, he did not want to take any precipitate action but he, however, made discreet inquiries from some of the leading counsel and they in strict confidence supported the allegations. This impelled the Chief Justice to look into the allegations more carefully when it transpired that it was not only the three suits mentioned hereinabove but other single Bench matters were also retained by Shri Kumar on his board despite being put in the Division Bench. He points out there was a long list of such suits carried by Shri Kumar with him and that some of the parties in the suits were rich and influential parties including some former Princes. He proceeds to state that in January, 1981, he looked into the matter a little more deeply and made further inquiries and even though some lawyers were noncommittal, others however asserted with some force that Shri Kumar’s reputation was not above beard. This led to his discussing the matter with some of his colleagues besides the two who had earlier spoken to him, and they also said that unconfirmed reports have been circulating in the Bar which were not very complimentary to Shri Kumar. This made the Chief Justice to conclude that reputation for integrity of Shri Kumar was not what should be for a Judge of the High Court’. He then proceeds to refer to the complaint of Shri Sabir Hussain against Shri Kumar in which he exonerates Shri Kumar. He deals with the quantum of work disposed of by Shri Kumar, an aspect which is not relevant for the present purpose. There is some reference to the conduct of Shri Kumar in his work as a judge in the Court. He concludes the letter by saying that he has already expressed his view that Shri Kumar should not be continued but it is for the Government to decide whether it would like Shri Kumar to continue as a Judge of the Delhi High Court. Undoubtedly, this letter has not been brought to the notice of the Chief Justice of India.

773. Thereafter the Law Minister wrote to the Chief Justice of India on May 21. 1981, enquiring from him whether he had completed his inquiry in regard to the complaints regarding Shri Kumar’s integrity and general conduct which the Chief Justice of Delhi High Court had discussed with him as mentioned by him in his letter dated March 28, 1981. He requested the Chief Justice of India to forward the advice in regard to the continuance or otherwise of Shri Kumar and Shri S.B. Wad. To this letter the Chief Justice of India replied by his letter dated May 22, 1981, in which after referring to the three points made by the Chief Justice of Delhi High Court in his first letter dated February 19, 1981, for not recommending continuance of Shri S.N. Kumar, he proceeded to state that the Chief Justice of Delhi High Court met him on March 26, 1981, and amongst others, he stated that he doubted the integrity of Shri Kumar because even though his assignment was changed he still continued to hear part-heard cases on the original side. The Chief Justice of India then proceeds to state that he has made the most careful and extensive enquiries in regard to both these matters and he was satisfied that there was no substance in any one of them. He proceeded to state that he made enquiries not only from the members of the Bar but from the sitting Judges of the Delhi High Court which allowed that it is a common practice in the Delhi High Court that even after the allocation of a judge is changed from the original side to the appellate side and vice versa, he continues to take up part-heard cases on which a substantial amount of time has been already spent. In his view, therefore, Shri Kumar did nothing out of the way or unusual in taking up part-heard cases after the allocation of his work was changed. He specifically disagreed with the view of the Chief Justice of Delhi High Court for non-continuance of Shri Kumar and further proceeded to assert that not one member of the Bar or of the Bench doubted the integrity of Shri Kumar, and on the other hand several of them stated that he is a man of unquestionable integrity. He concluded the letter by saying that Shri Kumar’s term should be extended by a further period of three months. I have not been able to appreciate the last line of this letter as to why a further three months’ extension is recommended. If Shri Kumar’s integrity in the opinion of the Chief Justice of India was beyond reproach, the fact whether he was slow in the disposal of work or other minor considerations should not have come in the way of the Chief Justice of India recommending a full term extension. It appears, however, that this three months’ extension was recommended because some reports of the intelligence branch in respect of Shri Kumar were also forwarded to the Chief Justice of India and probably the Chief Justice of India was to respond to the same. That the Chief Justice of India did by his letter dated May 29, 1981, and after having expressed his opinion with regard to the details of the report — not disclosed to the Court –the Chief Justice of India recommended a full term extension for Shri Kumar.

774. The sole contention raised by Shri R.K. Garg in this behalf is that the consultation envisaged by Article 224 read with Article 217(1) must be full and meaningful and if that is the criterion, failure of the Law Minister, may be on the request of Chief Justice of Delhi High Court, to disclose the letter dated May 7, 1981 of the Chief Justice of Delhi High court or its contents to the Chief Justice of India would unmistakably show that the process of consultation was not complete and, therefore, the consequent decision not to appoint Shri Kumar by not giving him any extension beyond June 6, 1981, is violative of the constitutional mandate and, therefore, invalid. Keeping aside for the time being the propriety of the request made by the Chief Justice of Delhi High Court that his letter dated May 7, 1981, should not be shown to the Chief Justice of India, what is required to be determined is whether the contents of the letter and more particularly the reasons and materials which prompted the Chief Justice of Delhi High Court to come to the conclusion that the reputation for integrity of Shri Kumar was not what should be for a Judge of the High Court, were brought to the notice of the Chief Justice of India at any point of time and whether he had a chance to think and deliberate over it. And if the answer is in the affirmative, mere failure to show the letter dated May 7, 1981, would not invalidate the decision. Without going into the further details in this behalf it clearly transpires that at the meeting between the Chief Justice of India and the Chief Justice of Delhi High Court on March 26, 1981, there was a specific discussion of all the three points, including one of lack of integrity of Shri Kumar. Once the question about the integrity of Shri Kumar came up for discussion between these two high constitutional functionaries with a specific reference to the view of the Chief Justice of Delhi High Court not to recommend Shri Kumar for further continuance, the conclusion is inescapable that all aspects bearing upon the integrity of Shri Kumar must have been discussed between the two high constitutional functionaries. That is why the Chief Justice of Delhi High Court says in his letter dated March 28. 1981, that he had discussed the entire matter in detail with the Chief Justice of India. This is further borne out by what the Chief Justice of India writes in his letter dated May 22, 1981, that at the meeting between them on March 26. 1981, the reasons which prompted the Chief Justice of Delhi High Court not to recommend continuance of Shri Kumar were discussed and this discussion included the complaint of Chief Justice of Delhi High Court about Shri Kumar’s integrity. There is a specific reference to Shri Kumar keeping to himself the part-heard cases after his assignment was changed, in the letter of the Chief Justice of India. This clearly indicates that there was threadbear discussion on this point and the discussion would include the material which the Chief Justice of Delhi High Court had and which he would necessarily refer to, to justify the view taken by him. There is another internal evidence to bear out this conclusion, Shri Kumar himself filed an affidavit on July 17, 1981, much before the hearing commenced in this case and much before disclosure of the relevant correspondence was ordered by this Court. In this affidavit he clearly refers to his retaining some of the part-heard cases after his assignment was changed and this, list includes the three suits referred to in the letter of the Chief Justice of Delhi High Court dated May 7 1981. What has prompted this explanation about the aforementioned three suits by Shri Kumar much before the disclosure was directed and he had a chance to look into the correspondence would be self-evident. The only permissible inference is that in his meeting with the Chief Justice of India which he refers to in para 18 of his affidavit he must have been informed by the Chief Justice of India that with reference to his handling of the aforementioned three suits and his tugging on to it after his assignment was changed gave rise to the belief that it was being done with some ulterior motives and the Chief Justice of India could have only gathered this information from the Chief Justice of Delhi High Court at their meeting on March 26, 1981. This is further internal evidence to buttress the conclusion that everything including all details set out in the letter dated May 7, 1981, concerning Shri Kumar’s integrity was the subject-matter of discussion between the Chief justice of Delhi High Court and Chief Justice of India at their meeting on March 28, 1981. If that be so, the conclusion is inescapable that the consultation is complete. Consultation need not take any particular form. The essence of consultation is deliberation. And if the two high constitutional functionaries met for the avowed object of discussing continuance of Shri Kumar with specific reference to the doubt about his integrity, it would be reasonable to hold that all aspects were considered, gone into and thrashed out. In this view of the matter non-showing of the letter dated May 7, 1981, to Chief Justice of India would not detract from the fullness of consultation as required by Article 217. For these reasons and some more discussed by Bhagwati, J. with whom I agree, it must be held that, there was full and effective consultation on all relevant points including those set out in the letters dated May 7, 1981, and the submission must accordingly be rejected.

775. Before I conclude, I would like to record by disapproval of the request made by the Chief Justice of Delhi High Court to the Law Minister for not showing the letter dated May 7, 1981, to the Chief Justice of India. If independence of judiciary is likely to be threatened it may or may not emanate from the executive or from some outside agency but it would be corroded by the action of the members of the judiciary itself, by internal corrosion, and if proof for this were needed, it is demonstratively supplied by a very improper request made by the Chief Justice of Delhi High Court to the Law Minister not to show the letter dated May 7, 1981, to the Chief Justice of India. I am unable to conceive a situation where in the correspondence, assertions, statements, expression of doubts concerning a high judicial functionary like a judge of the High Court can be made by the Chief Justice of a High Court which he is not willing to show to the Chief Justice of India. I am not implying any hierarchy. I put them on par and accord status and dignity to the high offices occupied by both. They may differ. Healthy difference is the life blood of honest opinion. But it is unthinkable albeit wholly improper for a Chief Justice of a High Court to write to the Law Minister something which he is not prepared to show to the Chief Justice of India. This conduct, if allowed to pass uncensured, would give rise to such fissiparous tendencies which would wholly undermine the independence of judiciary.

776. I also feel that the way in which the Chief Justice of Delhi High Court has dealt with the case of Shri O.N. Vohra leaves much to be desired. The Chief Justice of Delhi High Court seems to be completely unaware of his duty and obligation while recommending or refusing to recommend a colleague for extension. He holds no position superior to a High Court Judge functioning in his Court. He is only first amongst equals enjoying the status not on merits but on accident of seniority. He is not supposed to sit in judgment over the decisions of his colleagues. Where does he get this authority passes comprehension ? Mr. O.N. Vohra took a dignified stand and did not participate in this squabble, undignified as the whole episode appears to be. Had he come and participated, may be the Chief justice of Delhi High Court would have found his position so untenable that there would have emanated a strong censure about the method and manner of his dealing with his colleagues. These may appear to be strong words but they still fail to express my feelings adequately. I say no more.

777. There was one more submission which may be noticed in passing and I refer it only for future purpose. If a Chief Justice of a High Court gats information reflecting upon the character and integrity of a colleague or complaints about his behaviour in the Court, fair play in action demands that before relying upon it and taking a step of far-reaching consequence concerning the career and dignity of the colleague, he should in confidence talk to the colleague, in these days v/hen relations between the Bench and the Bar have sunk abysmally low, that rumours, canards, character assassination flourish in the grapevine, if credence is to be given to such rumours because about integrity usually fool proof facts are not available, but reputation for integrity being relevant, apart from any principle of natural justice which does not surface in this discussion, fair play in action demands that they should first be brought to the notice of the colleague not for his explanation but even for future rectitude. If the whole thing stops the decisive action can be deferred. If it continues to floorish the Chief Justice of a High Court in discharge of his constitutional duty of recommending or not recommending continuance of an additional judge may proceed to act as he considers befitting the high dignity of the office he holds; but to make assertion in secret and confidential letters without giving the slightest inclination to the colleague and then to shrink back to the extent of not permitting the same to be shown to the paterfamilias in the judiciary scales the height of impropriety. Let the past be buried and bygones be bygones but in future, a conduct and approach commensurate with the high office held by the Chief Justice of High Court must inform his action. Fair play in action is the watchword of judiciary and if it is extended to all others, a colleague in the High Court should not be at a comparative disadvantage.

778. I would, therefore, like to recall what happened in the course of hearing of these matters. At one stage the Bench unanimously suggested to the learned Attorney-General that even accepting his contention that the consultation was full and meaningful and there was no defect or deficiency in it a person who has worked as a Judge of a High Court for two years and three months should not be made to leave the institution with a wrench that a raw deal has been done to him and, therefore, Government of India may show the letter dated May 7, 1981. to the Chief Justice of India, request him to give his commen’s on the same and after considering the same in the light of the comments of the Chief Justice of Delhi High Court may mould the final decision concerning Shri Kumar. The learned Attorney-General replied that the Government of India has no objection to showing the letter dated May 7. 1981, to the Chief Justice of India. That is poor solace because the letter since disclosure had become public property, the media having published the same. But the learned Attorney General informed us that the Government of India was not prepared to reconsider the decision, Apart from the judiciary and the public, Government of India must be equally sensitive and considerate about maintaining both the dignity and independence of judiciary. It would add to the stature of the Government of India and reject unsubstantiated criticism that unwarranted attacks are made On the judiciary by the executive if the letter dated 7th May 1081 is shown to the Chief Justice of India and his comments are invited and then a decision is taken whether or not to reappoint Shri Kumar as an additional Judge.

779. While holding that there was full, effective and meaningful consultation, and on this account the petitions in this group are liable to be dismissed, I suggest that the Government of India may show the letter dated May 7, 1981, to the Chief Justice of India, request him to give comments and after receiving the comments, decide whether Shri Kumar should or should not be appointed as an additional judge of Delhi High Court. This is not a direction but merely a suggestion for the acceptance of the Government if thought fit.

780. In the second group of cases the first is writ petition No. 274/81 filed by an Advocate practicing in the Supreme Court, Miss Lily Thomas, impleading therein the Union of India represented by the Secretary, Ministry of Law as the sole respondent and in which the only prayer in the last paragraph is that this Court may be pleased to give true interpretation of Article 222 of the Constitution of India. In the body of the petition it was averred that the President of India in exercise of the power conferred by Article 222(1) of the Constitution has made an order transferring Mr. Justice M.M. Ismail, the then Chief Justice of the Madras High Court as Chief Justice, Kerala High Court. The question posed was whether the powers to transfer a Judge of a High Court conferred on the President under Article 222 can be used to defeat the right of puisne judges of the High Court to be considered for the post of Chief Justice of the High Court wherein a vacancy may have occurred. It was averred that on the elevation of Mr. V. Balakrishna Eradi, the then Chief Justice of Kerala High Court to the Bench of the Supreme Court of India, the office of Chief Justice. Kerala High Court has been rendered vacant and other considerations being equal, the next seniormost puisne judge who should legitimately occupy the same office is Mr. Justice Subramania Poti or any other judge of the Kerala High Court. It was contended that the expression ‘judge’ in Article 222 does not comprehend Chief Justice and, therefore, the transfer of Chief Justice M.M. Ismail as Chief Justice of Kerala High Court is ex facie illegal. It was also contended that this power to transfer was to be exercised in public interest and the power has not been conferred for the purpose of providing the executive with a weapon to punish a judge who does not toe its line and that exercise of such power would be subversive of the independence – of judiciary. An application for adding parties was made in which 9 other persons were sought to be impleaded as respondents, one of them being Shri K. B.N. Singh, Chief Justice of Patna High Court who was under an order of transfer as Chief Justice Madras High Court. There was also a prayer for urging additional grounds and the whole of the prayer clause was amended and by the amended clause a declaration was sought that Article 222 of the Constitution is illegal and unconstitutional. A further declaration was sought that the transfer of Chief Justice M.M. Ismail and Chief Justice K. B.N. Singh as Chief Justice of Madras and Kerala respectively being not in public interest and also because Article 222 does not confer any power to transfer a Chief Justice, is unconstitutional. By an order made by this Court on February 4, 1981, from amongst those sought to be arrayed as respondents, the prayer to join Mr. M.M. Ismail and Mr. K.B. N. Singh alone was granted and in respect of others the application was rejected. Rule was issued after recording a statement that the petitioner will not press ground No. 5 challenging the constitutional validity of Article 222 of the Constitution.

781. One Shri D.N. Pandey, Advocate, filed C. W. J. C. No. 2224/81 in the High Court of Patna impleading the Union of India, Chief Justice of India, Shri K.B. N. Singh, Chief Justice of Patna High Court, Registrar of Patna High Court as respondents, praying for an appropriate writ or order directing the respondents to forbear from giving effect to the order of the President dated January 19. 1981, transferring Shri K. B.N. Singh, Chief Justice of Patna High Court as Chief Justice, Madras High Court with effect from the date he assumed charge of his office. By an order made by a Bench of the Patna High Court, Shri Thakur Rampati Sinha, President, Bihar State Socialist Lawyers Association, was permitted to be added as petitioner No. 2. Various contentions have been raised in this petition and they will be dealt with at the (sic) place. By an order made by this Court the petition stood transfer and to this Court and numbered as Transfered Case No. 24/81. After the petitioner was transferred to this Court, shri K. B.N. Singh applied for transposing him from the array of respondents as petitioner and the same having been granted, Shri K.B. N. Singh is now petitioner No. 3. in this case and he is (sic) by counsel Dr. L.M. Singhvi. In this petition Shri K.B. N. Singh has filed a short affidavit on September 7, 1981, followed by a detailed affidavit on September 16, 1981. Shri K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, filed the counter-affidavit on September 24, 1981. Shri K.B. N. Singh filed a rejoinder affidavit on September 28, 1981. The Chief justice of India filed his counter-affidavit on September 29, 1981, to which a reminder affidavit was filed by Shri K.B. N. Singh on October 16, 1981. A rejoinder affidavit was also filed by Thakur Rampati Sinha on behalf of petitioners 1 and 2 on October 16. 1981.

782. One P. Subramaniam filed Writ Petition No. 553 of 1981 in the Madras High Court challenging the constitutional validity of Notification dated January 10, 1381, by which Shri M.M. Ismail, Chief Justice, Madras High Court Was transferred as Chief Justice. Kerala High Court. In this petition Union of India represented by the Secretary, Ministry of Law, Justice and Company Affairs was impleaded as the sole respondent. Union of India moved this Court under Article 139A(1) requesting the Court to withdraw to itself the aforementioned Writ Petition pending in the Madras High Court on the ground that petitions raising identical questions have already been transferred to this Court. This Court having granted the request, the writ petition stood transferred to this Court and numbered as Transferred Case No. 6/81.

783. One A. Rajappa. an Advocate of Madras, filed Writ petition No. 390/81 in the Madras High Court questioning the constitutional validity of the Notification transferring ‘Chief justice Ismail to Kerala High Gout, inter alia, contending that Article 222 does not comprehend power to transfer a Chief Justice. In this petition he impleaded the Union of India, Registrar of the Madras High Court, Registrar of the Kerala High Court and Registrar of the Patna High Court as respondents. An application to transfer this petition to this Court under Article 139A was moved. This Court accepted the transfer application by its order dated February 3, 1981, and accordingly the case stood transferred to this Court and numbered as transferred Case No. 2/81.

784. One Ripudaman Prasad Sinha had filed C. W. J. C. No. 312/31 in the Patna High Court for a writ of quo warranto seeking information as to how after the Notification dated January 19, 1981, transferring Shri K.B. N. Singh, Chief Justice, Patna High Court as Chief Justice. Madras High Court, he continued to occupy the office of Chief Justice, Patna High Court. This petition came up for admission before a Bench of the Patna High Court. At the oral hearing a question was posed to the petitioner why he had not produced the presidential notification and on this short ground the writ petition was rejected. An oral prayer for a certificate to appeal to the Supreme Court was also rejected. Hence he filed Special Leave petition (Civil) No. 1509 of 1981. He has impleaded Shri K.B. N. Singh, Union of India and the Chief Justice of India as respondents.

785. Mr. K.C. Kankan filed his counter affidavit in Transferred Case No. 24/ 81, inter alia, contending that the fact that the mother of Shri K.B. N. Singh is aged about 85 years and is ailing and bed-ridden for last two years was present to the mind of the Chief Justice of India. The Chief Justice of India can certainly be presumed to have knowledge not only about this fact but the other fact that Tamil language is freely used in Tamil Nadu and Shri K.B. N. Singh is not conversant with it. It is stated that Shri K.B. N. Singh had an effective opportunity to represent his case before the Chief Justice of India. Then it is further averred that chief Justice of India had visited Patna as mentioned by Shri K.B. N. Singh himself. It is further stated that the Chief Justice of India while making recommendations for transfers pointed out that he had met several lawyers and judges of the concerned High Courts and expressed the view that of the basis of data which he collected and which he bad considered with greatest objectivity. Shri K.B. N. Singh should be transferred, it is not disputed that for misbehaviour as adumbrated in Article 124, transfer is not the. remedy and that transfer can only be ordered in public interest without regard to any complaint of misbehaviour. Denying the averment of Shri K.B. N. Singh that transfer was based on considerations which are not genuine and germane, it was stated that Shri Singh has given no basis for his averment that the transfer order is likely to have been made because either the Hon’ble Chief Justice of India or the President of India or both of them have been misled by interested parties. It was asserted that considerations relevant to transfer were taken into account by the Chief Justice of India as also by the President of India. The request of Shri K.B. N. Singh for disclosure of documents bearing upon his transfer was resisted by Shri T. N. Chaturvedi Secretary Department of Justice. Ministry of Law, Justice and Company Affairs, claiming privilege against disclosure of documents.

786. Transferred Case No. 24/81 arising from the writ petition filed by Shri D.N. Pandey in which Mr. K.B. N. Singh at his request was transposed as petitioner No. 3, was heard as the main case and other petitioners and their learned Counsel were permitted to intervene at the hearing of this case.

787. Dr. L.M. Singhvi who led, ably supported by Shri H.M. Seervai and Shri Soli Sorabjee, put in the forefront the contention that the power to transfer a judge of the High Court is an extraordinary power vested in the President, the highest executive in the country, which has to be exercised according to the advice of the council of ministers, if not properly controlled and adequate safeguards provided, would render independence of judiciary a myth, Keeping aside, therefore the facts of the case. it would be advantageous at this stage to find out the purpose for which such power is conferred on the President under Article 222, the circumstances in which the power can be exercised highlighting the constraint or limitations on the exercise of power which would be safeguards against arbitrary exercise of power.

788. To repeat, on the quest on of construction of Article 222 we are not breaking a fresh ground. It was the subject-matter of a very intelligent and enlightened debate in the Gujarat High Court wherein Mr. S.H. Sheth, a judge of the Gujarat High Court challenged his transfer to Andhra Pradesh High Court, This debate continued unabated in the appeal against the decision of a special bench of the Gujarat High Court to this Court. Barring some additional submissions the arguments covered the familiar ground. I say familiar because I had the privilege of hearing arguments at the time of admission of the Special Civil Application filed by Mr. S.H. Sheth in the Gujarat High Court and also when the petition was finally heard. The appeal against the decision of the Gujarat High Court quashing the order of transfer of Mr. S.H. Sheth and issuing a mandamus to the Union of India directing it to forbear from giving effect to the transfer order was heard by a Constitution Bench of this Court presided over by Shri Y.V. Chandrachud, who, as the quirk of fate shows, in his capacity as Chief Justice new is one of the respondents in this group of cases. As we are to a considerable extent on a familiar ground, in order to avoid mere repeat performance, it would be conducive to proper adjudication of issues raised, to recall what has been the view of the Constitution Bench of this Court in Mr. Sheth’s case , After briefly referring to the position thus established, I would refer to additional contentions and also a fervent appeal for accepting the minority view in Mr. Sheth’s case because very persuasively it was argued that this larger Bench must re-examine the issue in its entirety. The emotional appeal was founded on the submission that since the decision in Mr. Sheth’s case disturbing trends have appeared in the Indian polity and even though once thwarted a claim to naked and arbitrary exercise of power for transfer having been made on behalf of the Union of India and is being further shown that the safeguard which appealed to the majority view in Mr. Sheth’s case having been found to be of slender strength, the Court should further insulate the Judiciary from continuing threats emanating from powerful executive quarters.

789. In constitutional interpretation while value system may have a fair sprinkling, emotions, sentiments, unfounded suspicions, wild apprehensions and imaginary threats have no place. Equally, a possible chance or abuse of power would not permit denial of power if it is conferred. We will have to be all the more circumspect, Imbued with wisdom and restraints because let it not be said by the posterity that the judges interpreting the judiciary provisions in the Constitution have rewritten the Constitution for their own total and absolute insulation from any quarter so that an otherwise irremovable elitist institution may become so entrenched as to be impervious to the realities of the situation. We wish to steer clear of what professor Friedmann stated, between the scylla of subservience to Government and the charybdis of remoteness from constantly changing social pressures and economic needs (see Law in a Changing Society by W. Friedmann).

790. Let us then first recapitulate what has been the majority view in Mr. Sheth’s case ).

791. Mr. S.H. Sheth, a judge of the Gujarat High Court was transferred as per the Presidential Notification dated May 7, 1976 as Judge of the High Court of Andhra Pradesh. Mr. Sheth challenged the order of transfer in a petition that he filed in Gujarat High Court on June 16, 1976, in which he impleaded Union of India and the then Chief Justice of India as respondents. This petition was heard by a special Bench of Gujarat High Court which by a unanimous order dated November 4, 1976, voided the order of transfer. An appeal by certificate was preferred by the Union of India to this Court which was heard by a Constitution Bench of this Court.

792. Let me recapitulate the contentions canvassed on behalf of Mr. S.H. Sheth in his petition questioning the validity of the order made under Article 222(1) by which, he was transferred from the office of the judge of the High Court of Gujarat to the office of the judge of High Court of Andhra Pradesh, The constitutional validity of the order of transfer was challenged on the following grounds:

(i) The order was passed without his consent, such consent must be necessarily implied in Article 222(1) of the Constitution and, therefore, the transfer of a judge from one High Court to and other High Court without his consend is unconstitutional:

(ii) The order was passed in breach of the assurance given on behalf of the Government of India by then LAW Minister Shri A.K. Sen who, while moving the Constitution (Fifteenth Amendment) Act, 1963, said in the Lok Sabha that “so far as High Court Judges are concerned they should not be transferred except by consent.” Mr. Sheth having accepted judgeship of Gujarat High Court on April 23, 1969, on the faith of the Law Minister’s assurance, the Government of India was bound by that assurance on the doctrine of promissory estoppel;

(iii) The order of transfer militated against public interest. The power conferred by Article 222(1) was conditioned by the exigencies and requirements of public interest and since his transfer was not shown to have been made in public interest it was ultra vires; and

(iv) The order was passed without effective consultation with the Chief Justice of India. ‘Consultation’ in Article 222(1) means ‘effective consultation’ and since the pre-condition of Article 222(1) that no transfer can be made without such consultation was not fulfilled, the order was bad and of no effect.

Though the Full Bench of the Gujarat High Court by a unanimous order struck down the order of transfer they arrived at this conclusion by different processes of reasoning. One judge took the view that in not consulting or informing Mr. Sheth of even the proposal of transfer, it being an administrative executive action in violation of the principles of natural justice and hence the order was bad. The second judge took the view that the order was unconstitutional because it was passed without Mr. Sheth’s consent and secondly because it was passed for a collateral purpose. The third judge took the view that the mass transfers of 16 judges which were effected with one stroke though each judge may have had peculiar personal difficulties to contend with and considering that the Union of India had failed to disclose the nature and content of the consultation with the Chief Justice of India, the consultation was not meaningful and that the pre-condition for exercise of power in Article 222(1) was not satisfied and, therefore, the order was void. All the three judges unanimously rejected the challenge to the order of transfer on the ground of promissory estoppel.

793. In the appeal preferred by the Union of India only two contentions were examined by the Constitution Bench of this Court. They were; (i) the independence of judiciary being the basic and fundamental feature of the Constitution, power of non-consensual transfer to be exercised by the executive, a litigant before the judge in large number of cases, would be subversive of the independence of judiciary and, therefore the Court must read in Article 222(1) that the power to transfer can only be exercised with consent of the judge proposed to be transferred; and (ii) that the power to transfer High Court judge having been conferred on the President it can only be exercised in public interest and that before exercise of such power there must be full, effective and meaningful consultation between the President and the Chief Justice of India. Under the second submission, the scope and content of the consultation necessary to satisfy the stringent requirements of Article 222 have been fully thrashed out.

794. The leading judgment of majority view by Chandrachud, J. after referring to various articles, of the Constitution held that the provisions set out in the judgment indisputably, are aimed at insulating the High Court judiciary and even officers and servants of the Court from the influence of the executive. The observation of Krishna Iyer, J. in Shamsher Singh’s case that fearless justice is a prominent creed of our Constitution and the independence of judiciary is the fighting faith of our founding document, was affirmed. It was also held that power to transfer the High Court Judge is conferred by the Constitution to public interest and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line or who for some reason or other has fallen from its grace. Thirdly, it was held that the two-fold limitation on the power of the President to transfer a High Court Judge namely that it can be exercised in public interest and that it can only be exercised after full, effective and meaningful consultation with the Chief Justice of India would provide sufficient safeguards against arbitrary exercise of power and accordingly the contention that in order to insulate the judiciary from executive interference the Court should read into Article 222 the words ‘with his consent’ was rejected. What constitutes meaningful, effective, full and substantial consultation has been succinctly set out in a paragraph at p. 453 of 1978-1 SCR: at p. 2347 of AIR 1977 SC which has been extracted hereinbefore. Briefly to recapitulate in the present context, the President must make relevant data available to the Chief Justice of India on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice of India, he must ask for them because in casting on the President the obligation to consult the Chief Justice of India, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice of India to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfillment by the President of his constitutional obligation to place full facts before the Chief Justice of India and the performance by the latter of the duty to elicit facts which are ‘necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of Justice.’ Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive consultation. Concluding on this point, it was observed as under: Article 222(1) postulates fair play and contains built-in safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice, Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge of this constitutional obligation the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice, in substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed (at p. 456) (of 1678-1 SCR): (at p. 2340 of AIR 1977 SC.

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