AIR 1982 SC 149
IN THE SUPREME COURT OF INDIA
Decided On: 30.12.1981
S.P. Gupta
Vs.
President of India and Ors.
Hon’ble Judges:
A.C. Gupta, D.A. Desai, E.S. Venkataramiah, P.N. Bhagawati, R.S. Pathak, Syed M. Fazal Ali andv.D. Tulzapurkar, JJ.
J U D G M E N T
P.N. Bhagwati, J
1. These writ petitions filed in different High Courts and transferred to this Court under Article 139 of the Constitution raise issues of great constitutional importance affecting the independence of the judiciary and they have been argued at great length before us. The arguments have occupied as many as thirty five days and they have ranged over a large number of issues comprising every imaginable aspect of the judicial institution, Voluminous written submissions have been filed before us which reflect the enormous industry and vast erudition of the learned Counsel appearing for the parties and a large number of authorities, Indian as well as foreign, have been brought to our attention. We must acknowledge with gratitude our indebtedness to the learned Counsel for the great assistance they have rendered to us in the delicate and difficult task of adjudicating upon highly sensitive issues arising in these writ petitions. We find, and this is not unusual in cases of this kind, that a considerable amount of passion has been injected into the arguments on both sides and sometimes passion may appear to lend strength to an argument, but, sitting as Judges, we have to be careful to see that passion does not blind us to logic and predilections pervert proper interpretation of the constitutional provisions. We have to examine the arguments objectively and dispassionately without being swayed by populist approach or sentimental appeal. It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. Reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Arobindo in his poem “Savitri”.
An inconclusive play is Reason’s toil;
Each strong idea can use her as its tool;
Accepting every brief she pleads her case, Open to every thought she cannot know.
We have therefore to rid our mind of any pre-conceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will, if we want, but that would be rewriting the Constitution in the guise of interpretation. We must also remember that the Constitution is an organic instrument intended to endure and its provisions must be interpreted having regard to the constitutional objectives and goals and not in the light of how a particular Government may be acting at a given point of time. Judicial response to the problem of constitutional interpretation must not suffer from the fault of emotionalism or sentimentalism which is likely to cloud the vision when Judges are confronted with issues of momentous importance. We must constantly bear in mind the famous words of Holmes J., in Northern Security Co. v. United States (1903) 193 US 197, where that great illustrious Judge said:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment, These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
With these prefatory words we may now proceed to state the facts of these writ petitions.
2. The first writ petition is that filed by Iqbal Chagla and others in the High Court of Bombay. The petitioners in this writ petition are advocates practising in the High Court of Bombay and they have challenged a circular letter dated 18th March, 1981, addressed by Shri Shiv Shankar, the Law Minister of the Government of India, to the Governor of Punjab and the Chief Ministers of the other States. Since the circular letter has formed the subject matter of heated controversy between the parties and its constitutional validity has been assailed on behalf of the petitioners, it would be desirable to reproduce it in extenso in the words of the author himself:
D. O. No. 66/10/81-Jus.
Ministry of Law, Justice and 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 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 the 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 you 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 paragraph 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 at the 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 initiated 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) To
1. Governor of Punjab
2. Chief Ministers (by name) (Except North-Eastern States.) It appears that a copy of the Circular letter was sent by Law Minister to the Chief Justice of each High Court and the Chief Minister of each State also forwarded a copy of the circular letter to the Chief Justice of the High Court of his State. We do not know what the Chief Justices of the various High Courts did on receipt of a copy of the circular letter from the Law Minister and from the Chief Ministers of their respective States, but presumably each Chief Justice sent a copy of the circular letter to the additional Judges in his Court with a request to do the needful in view of what was stated in the circular letter. The Chief Justice of Bombay High Court in any event addressed such a communication to each of the additional Judges in his Court. We do not know what was the response of the additional Judges in Bombay to the circular letter but the record shows that out of a total number of additional Judges in the Country, quite a few additional Judges gave their consent to be appointed outside their High Court. The petitioners and other advocates practising on the original as well as appellate side of the High Court of Bombay however took the view that the circular letter was a direct attack on the independence of the judiciary which is a basic feature of the Constitution and hence the Advocates Association of Western India which represents advocates practising on the appellate side, the Bombay Bar Association which represents advocates practising on the original side and the Managing Committee of the Bombay Incorporated Law Society which represents Solicitors practising in the High Court of Bombay, passed resolutions condemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter. Since the circular letter was not withdrawn by the Law Minister, the petitioners filed the present writ petition in the High Court of Bombay challenging the constitutional validity of the circular letter and seeking a declaration that if consent has been given by any additional Judge or by any person whose name has been or is to be submitted for appointment as a Judge, consequent on or arising from the circular letter, it should be held to be null and void. There were several grounds on which the constitutional validity of the circular letter was challenged but it is not necessary to set them out at the present stage because we shall have occasion to refer to them in detail when we deal with the rival arguments of the parties. The petitioners impleaded the Law Minister as respondent No. 1, the Union of India as respondent No. 2 and ten additional Judges of the Bombay High Court as respondents Nos. 3 to 12. The writ petition was filed on 20th April 1981 and immediately after filing it, the petitioners applied to the learned single Judge sitting on the original side of the Bombay High Court for admission of the writ petition and interim relief. The admission of the writ petition as also the grant of interim relief were opposed on behalf of respondent Nos. 1 and 2 but the learned single Judge admitted the writ petition and issued a rule and granted interim relief in terms of prayer (e) of the writ petition. The effect of granting the interim relief was that respondents Nos. 1 and 2 were restrained from further implementing the circular letter and acting in any manner upon the consent, if any, obtained from any person following on or arising from the circular letter. Respondents Nos. 1 and 2 thereupon preferred an appeal to a Division Bench of the Bombay High Court under Clause (15) of the Letters Patent but the appeal was dismissed by the Division Bench on 24th April, 1981. The Division Bench fixed the hearing of the writ petition before the learned single Judge hearing writ petitions on 25th June 1981 and also gave directions for tiling of affidavits by the parties. Respondent Nos. 1 and 2 being aggrieved by the order made by the Division Bench dismissing their appeal made an application to this Court on 8th May 1981 for taking up their special leave petition directed against the order of the Division Bench on the same day, but this Court refused to take up the special leave petition for hearing on that day and directed that it may come up for hearing in due course, Respondents Nos. 1 and 2 in the meanwhile filed Transfer Petition No. 24 of 1981 for transfer of the writ petition from the Bombay High Court to this Court under Article 139A of the Constitution and ultimately by an order dated 9th June 1981, the vacation Judge directed that the writ petition be withdrawn from the Bombay High Court to this Court and he also gave directions for filing of affidavits and written briefs. That is how the present writ petition filed by Iqbal Chagla and others has come up for hearing before this Bench of seven Judges constituted by the Hon’ble the Chief Justice of India.
3. The second writ petition is that filed by V.M. Tarkunde in the High Court of Delhi. The petitioner in this writ petition is a senior advocate practising in the Supreme Court and he has not only challenged the constitutional validity of the circular letter issued by the Law Minister but also assailed the practice followed by the Central Govt. in appointing additional Judges in various High Courts. The grounds on which the constitutional validity of the circular letter is challenged are the same as those taken in the first petition filed by Iqbal Chagla and others, but, so far as the complaint in respect of appointment of additional Judges is concerned, this writ petition covers new ground not treaded by the first writ petition. What made it necessary to include this complaint in the writ petition was the fact that three additional Judges of Delhi High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from 7th March 1979, and whose term was expiring on the midnight of 6th March 1981 were further appointed as additional Judges for a period of three months only from 7th March 1981 and these short-term appointments were, according to the petitioner, unjustified by the terms of Article 224 and were in any event subversive of the independence of the judiciary. The petitioner therefore claimed in the writ petition, in addition to the declaration that the circular letter was unconstitutional and void, a writ of mandamus directing the Central Government to convert the posts of additional Judges into permanent Judges in the various High Courts commensurate with the regular business and the arrears in those High Courts and in particular to convert 12 posts of additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the large arrears in that High Court. The petitioner also questioned the validity of short-term appointments of O.N. Vohra, S.N. Kumar and S.B. Wad and claimed that since there was an existing vacancy in a permanent post, O.N. Vohra should be appointed as a permanent Judge to fill that vacancy and so far as S.N. Kumar and S.B. Wad were concerned, they should be appointed for the full term of two years. It appears that the Union of India was the only respondent impleaded in the writ petition as originally filed, but subsequently the Law Minister as also the Joint Secretary, Ministry of Law, Justice and Company Affairs were added as respondents Nos. 2 and 3 to the writ petitions. The High Court of Delhi by its order dated 23rd April, 1981, admitted the writ petition and issued rule upon it. However, since the questions arising in the writ petition were questions of great constitutional importance and the first writ petition had already been filed in the Bombay High Court and another writ petition to which we shall presently refer had also been presented in the High Court of Allahabad raising substantially the same questions, an application was made to this Court on 24th April 1981 for transfer of the writ petition to this Court and by an order dated Ist May, 1981 this Court transferred the writ petition to itself from the Delhi High Court. Meanwhile, the further term of O.N. Vohra, S.N. Kumar and S.B. Wad was about to expire on 6th June, 1981 and no decision appeared to have been taken till then for continuing these three additional Judges for a further term and the petitioner apprehended that if these three additional Judges were not continued as additional Judges on the expiration of their term on 6th June, 1981, the writ petition might become infructuous. The petitioner therefore, presented an application to this Court on 4th May 1981, for an order directing that the writ petition be heard and disposed of before 6th June, 1981 and that in any event, the respondents should maintain status quo by extending the period of appointment of additional Judges in the various High Courts till the disposal of the writ petition. Immediately on filing this application the petitioner requested the Court to fix an early date of hearing of the writ petition so that it could be disposed of before 6th June, 1981, but since the Court was closing for the summer vacation from 9th May, 1981, it was not possible to fix the hearing of the writ petition until the reopening of the court after the summer vacation. The petitioner thereupon prayed for an interim order that on the expiration of their term on 6th June, 1981, the additional Judges should be continued and their term extended until the final disposal of the writ petition. But, obviously this was not a prayer which could be granted by the Court because it is for the President and not for the Court to appoint Additional Judges and once the term of an Additional Judge has come to an end by efflux of time, it is not competent for the court to reappoint him for a further term. Since, however, an allegation was made in the application that the appointments of additional Judges for a further term were being made at the last minute and three additional Judges of the Bombay High Court at Nagpur were not informed about the extension of their term until the evening of the last day on which their original term was due to expire, this Court made an order dated 8th May 1981 directing that, since the hearing of the writ petition would not be taking place until the reopening of the Court after the summer vacation, the Union of India should “decide not less than ten days before 6th June, 1981 whether any of the three additional Judges should be reappointed for a further term as additional Judges or they should be appointed as permanent Judges or otherwise”. So far as the circular letter was concerned, though no prayer for interim relief was made in the written application, this Court, on an oral application made on behalf of the petitioner, directed that any additional Judge who does not wish to respond to the circular letter may do so until the disposal of the writ petition and he shall not be refused extension nor shall he be refused permanent appointment, as the case may be, on the ground that he has not sent any reply to the circular letter or has not indicated his preference as asked for in the circular letter. Now, according to this order, the Central Government was bound to take its decision in regard to the continuance or otherwise of O.N. Vohra, S.N. Kumar and S.B. Wad on or before 27th May, 1981 but since no such decision was communicated to the three additional Judges, the petitioner, presuming that such decision must not have been reached by the Central Government, preferred an application to this Court on Ist June, 1981 for directing the Central Government to communicate its decision regarding the continuance or otherwise of the three additional Judges. Before this application came up for hearing, the petitioner came to know that a decision had been taken by the Central Government in regard to O.N. Vohra S.N. Kumar and S.B. Wad and while S.B. Wad was continued as an additional Judge for a period of one year from 7th June, 1981, O.N. Vohra and S.N. Kumar were not continued for a further term. The petitioner thereupon preferred another application to this Court on 4th June, 1981 and in this application the petitioner pointed out that there were still large arrears of work in the Delhi High Court and therefore there was no lawful and bona fide reason for the non-continuance of O.N. Vohra and S.N. Kumar and not granting fresh appointments to them was mala fide and unconstitutional and prayed that in the circumstances, an interim order should be made by the Court directing that O.N. Vohra and S.N. Kumar shall continue to function as Judges of the Delhi High Court. Both these applications came up for hearing before the learned Vacation Judge and by an order dated 6th June, 1981, the learned Vacation Judge declined to grant interim relief that O.N. Vohra and S.N. Kumar shall continue as additional Judges but directed that notice be issued to show cause why status quo in respect of these two Judges should not be maintained and continued till the pendency of the writ petition. It appears that no order was thereafter made on the notice, since the writ petition itself was directed to be heard at an early date and in the meanwhile, O.N. Vohra and S.N. Kumar were impleaded as respondent Nos. 4 and 5, to the writ petition. O.N. Vohra did not appear at the hearing of the writ petition but S.N. Kumar appeared through counsel, filed a counter-affidavit and claimed that the decision of the Central Government not to appoint him for a further term was vitiated since it was reached without full and effective consultation with the Chief Justice of India and in any event it was based on irrelevant considerations and that on a proper construction of Article 224 read with Article 217, he must be deemed to have been appointed a permanent Judge and in any event, he was entitled to be appointed as an additional Judge for a further term. The Union of India also filed an affidavit in answer to the writ petition and a further affidavit in reply to the counter-affidavit of S.N. Kumar. The writ petition was thereafter placed for hearing before this Bench of seven Judges along with the writ petition filed by Iqbal Chagla and others.
4. The third writ petition is that filed by J.L. Kalra and others in the High Court of Delhi. The petitioners in this writ petition are advocates practising in the Delhi High Court and they have prayed for the issue of a writ in the nature of mandamus directing the Central Government to make an assessment of the number of permanent and additional Judges required by the Delhi High Court having regard to its current business and the accumulated arrears, to create such number of posts of permanent and additional Judges as may be necessary and to make appointments to these posts. The other reliefs asked for in this writ petition are substantially the same as the reliefs prayed for in the writ petition filed by V.M. Tarkunde. This writ petition was also like the other writ petitions withdrawn and transferred to itself by this Court. Since the issues arising in this writ petition are identical with the issues arising in the other two writ petitions, it was heard by this Bench of seven Judges along with those writ petitions.
5. The fourth writ petition is that filed by S.P. Gupta in the High Court of Allahabad. The petitioner in that writ petition is an advocate practising in the Allahabad High Court and he has filed this writ petition for substantially the same reliefs as the writ petitions of Iqbal Chagla and V.M. Tarkunde, with only this difference that the reliefs claimed by him relate to the appointments of additional Judges in the High Court of Allahabad, The petitioner has inter alia prayed for a declaration that the three additional Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar, Mr. Justice A.N. Verma and Mr. Justice N.N. Mittal must be deemed to have been appointed permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister must be held to be void. This writ petition was also heard along with the other writ petitions by this Bench of seven Judges.
6. Since these four writ petitions to which we have just referred raise the same issues in regard to the circular letter issued by the Law Minister and the scope and ambit of the power of the Central Government in regard to appointment or non-appointment of additional Judges, it would be convenient to deal with them in a group and we shall hereafter for the sake of convenience refer to them as the first group of writ petitions.
7. The fifth writ petition is that filed by Miss Lily Thomas, an advocate practising in the Supreme Court. This writ petition has challenged the transfer of Mr. Justice M.M. Ismail, Chief Justice of the High Court of Madras as the Chief Justice of Kerala High Court. What occasioned the filing of this writ petition was an order dated 19th Jan., 1981 made by the President transferring Mr. Justice M.M. Ismail, Chief Justice of the Madras High Court as Chief Justice of the Kerala High Court with effect from the date he assumed charge of his office. This order recited that it was made by the President in exercise of the powers conferred under Clause (1) of Article 222 and after consultation with the Chief Justice of India. Simultaneously with the making of this order, another order of the same date was issued by the President whereby the President in exercise of the powers conferred by Clause (1) of Article 222 after consultation with the Chief Justice transferred Mr. Justice K.B.N. Singh, Chief Justice of the High Court of Patna as Chief Justice of the High Court of Madras with effect from the date he assumed charge of his office. It was the first order of transfer” of Mr. Justice M.M. Ismail as Chief Justice of the Kerala High Court that was challenged by the petitioner in this writ petition. There were several grounds on which the transfer was challenged and they were inter alia that the power of transfer conferred under Clause (1) of Article 222 was confined only to transfer of a High Court Judge and did not cover transfer of the Chief Justice of a High Court, even if the Chief Justice of a High Court could be transferred in exercise of the power conferred under Clause (1) of Article 222, such transfer could be effected only with consent of the Judge sought to be transferred and in any event, even if consent was not necessary, such transfer could be effected only in public interest and after full and effective consultation with the Chief Justice of India and in the case of transfer of Chief Justice M.M. Ismail, none of these conditions was satisfied, since the transfer was not effected with his consent and it was neither in public interest nor after full and effective consultation with the Chief Justice of India. This writ petition was filed by the petitioner under Article 32 of the Constitution and therefore when it came up for admission before a Bench of this Court, the Bench asked the petitioner as to how it was maintainable under Article 32. The Bench was inclined to throughout the petition summarily on the ground that it did not (sic) under Article 32, but the Attorney General of India appearing on behalf of the Union of India submitted that since the writ petition raised important questions of law, it may be entertained by the Court, because in any event, even if this writ petition were rejected on the ground that it was not maintainable under Article 32, a new writ petition for the same reliefs could always be filed under Article 226 and then it could be brought to this Court either by way of transfer under Article 124A or by way of an appeal under Article 136. The Bench therefore decided to admit this writ petition and issued rule nisi. After this writ petition was admitted, there were several interlocutory proceedings taken out by the petitioner, but it is not necessary to refer to them since most of them were rejected. The Union of India filed a counter-affidavit in reply to this writ petition contesting the various grounds urged on behalf of the petitioner. Chief Justice M.M. Ismail who was impleaded as respondent No. 2 in this writ petition, also filed an affidavit but the stand he took was that he had decided not to challenge the legality or validity of the order of the President transferring him as Chief Justice of the Kerala High Court and he did not want anyone to litigate for or against him. Since Chief Justice M.M. Ismail, who was the person to whom legal injury was caused by the order of transfer, did not claim any relief and made it clear that he did not want anyone to litigate for him, this writ petition could not be maintained by the petitioner and it was liable to be dismissed, but since the petitioner who was appearing in person, wanted to make a few submissions in regard to the scope and ambit of the power of transfer, we heard her for sometime. We may point out that whilst this writ petition was pending, Chief Justice M.M. Ismail resigned his office as Chief Justice of the Madras High Court and therefore, all the more, nothing survives in this writ petition.
8. The sixth writ petition is that filed by A. Rajappa an advocate practising in the High Court of Madras. This writ petition was originally filed in the High Court of Madras under Article 226 of the Constitution and in this writ petition the petitioner challenged the constitutional validity of the orders of transfer passed by the President on 19th Jan., 1981 transferring Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court and Mr. Justice K.B.N. Singh, Chief Justice of Patna High Court as the Chief Justice of Madras High Court. The principal grounds on which these two orders of transfer were assailed as unconstitutional and void were substantially the same as those urged in the fifth writ petition filed by Miss Lily Thomas, with only two additional grounds, namely, that the transfers having been effected without prior consultation with the Governors of the States to which the two Chief Justices were transferred, were violative of Clause (1) of Article 217 and so far as the transfer of Chief Justice K.B.N. Singh as Chief Justice of Madras High Court was concerned, it was not in public interest, since Chief Justice K.B.N. Singh did not know the Tamil language. This writ petition was withdrawn and transferred to itself by this Court since it raised substantially the same issues as the fifth writ petition filed by Miss Lily Thomas which was pending in this Court. The Union of India opposed this writ petition by filing a counter-affidavit where it contended that the transfers of both the Chief Justices were effected in public interest and after consultation with the Chief Justice of India who is the only authority required to be consulted whilst exercising the power of transfer under Article 222, Clause (1) and the procedure prescribed by Article 217 Clause (1) had no application in the case of transfer of a Judge or Chief Justice from one High Court to another. This writ petition was also referred to a Bench of seven Judges along with the fifth writ petition and that is how both these writ petitions have come up for hearing before us.
9. The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras High Court. This writ petition was originally filed in the Madras High Court under Article 226 and along with the other writ petitions it was transferred to this Court for hearing and final disposal. The averments and prayers made in this writ petition are substantially the same as those in the sixth writ petition filed by A. Rajappa and so also, are the statements made in the counter-affidavit filed on behalf of the Union of India. This writ petition does not therefore need any separate or independent consideration.
10. The eighth writ petition is that filed by D.N. Pandey and Thakur Ramapati Sinha, two advocates practising in the High Court of Patna. This writ petition was originally filed in the High Court of Patna under Article 226 and it challenged the constitutional validity of the Orders transferring Chief Justice M.M. Ismail to the Kerala High Court and Chief Justice K.B.N. Singh to the Madras High Court. The averments and prayers made in the writ petition are substantially the same as those made in the fifth, sixth and seventh writ petitions filed respectively by Miss Lily Thomas, A. Rajappa and P. Subramanian and it is therefore not necessary to repeat them. Suffice it to state that this writ petition was also transferred to this Court along with the other writ petitions under Article 124A. Whilst this writ petition was pending, Chief Justice K.B.N. Singh, who was originally impleaded as respondent No. 3 in the writ petition, applied for being transposed, as petitioner No. 3 and since the original petitioners had no objection to Chief Justice K.B.N. Singh joining them as co-petitioner, this Court made an Order on 17th Sept., 1981 transposing Chief Justice K.B.N. Singh as petitioner No. 3. Chief Justice K.B.N. Singh thereafter filed an affidavit setting out in extenso what transpired between him and the Chief Justice of India in regard to the proposal for his transfer and detailing the various grounds on which he contended that the order transferring him as Chief Justice of the Madras High Court was unconstitutional and void. Chief Justice K.B.N. Singh contended inter alia that the order transferring him as Chief Justice of the Madras High Court was passed by the President by way of punishment and it was based on irrelevant and insufficient grounds and was not in public interest and in any event, it was not preceded by full and effective consultation with the Chief Justice of India. The averments made by Chief Justice K.B.N. Singh in his affidavit were disputed by the Union of India in an affidavit sworn by K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs and the Chief Justice of India also filed a counter-affidavit in reply to the affidavit of Chief Justice K.B.N. Singh. The counter-affidavit of the Chief Justice of India prompted two affidavits in rejoinder, one by Chief Justice K.B.N. Singh and the other by petitioners Nos. 1 and 2. We shall have occasion to refer to these various affidavits when we deal with the rival arguments advanced on behalf of the parties.
11. These last four writ petitions challenging the constitutional validity of Orders of transfer of Chief Justice M.M. Ismail and Chief Justice K.B.N. Singh raised identical issues and we would therefore dispose them of together in one group. They may for the sake of convenience be referred as the second group of writ petitions.
12. We may also at this stage refer to S. L. P. No. 1509 of 1981, filed by Ripudaman Prasad Sinha in this Court. This petition for special leave is directed against an order passed by the High Court of Patna rejecting the writ petition of the petitioner challenging the constitutional validity of the order of transfer of Chief Justice K.B.N. Singh, on the ground that the petitioner had not been able to produce the documents on which he wanted to place reliance. This is hardly a ground on which the writ petition should have been rejected by the High Court in limine and we would have therefore, ordinarily granted special leave to appeal against the decision of the High Court, but in view of the fact that the issues sought to be raised by the petitioner have already been agitated in the other writ petitions, it is not necessary to grant special leave and hence we do not propose to make any order on the special leave petition Locus Standi:
13. When these writ petitions reached hearing before us, a preliminary objection was raised by Mr. Mridul, appearing on behalf of the Law Minister, challenging the locus standi of the petitioners in Iqbal Chagla’s writ petition. He urged that the petitioners in that writ petition had not suffered any legal injury as a result of the issuance of the Circular by the Law Minister or the making of short term appointments by the Central Government and they had therefore no locus standi to maintain the writ petition assailing the constitutional validity of the Circular or the short term appointments. The legal injury, if at all, was caused to the additional Judges whose consent was sought to be obtained under the Circular or who were appointed for short terms and they alone were therefore entitled to impugn the constitutionality of the Circular and the short term appointments and not the petitioners. The basic postulate of the argument was that it is only a person who has suffered legal injury who can maintain a writ petition for redress and no third party can be permitted to have access to the Court for the purpose of seeking redress for the person injured. The same preliminary objection was urged by Mr. Mridul against the writ petition of S.P. Gupta and the contention was that the petitioner in that writ petition not having suffered any legal injury had no locus standi to maintain the writ petition. So far as the writ petition of V.M. Tarkunde is concerned, Mr. Mridul said that he would have had the same preliminary objection against the locus standi of the petitioner to maintain that writ petition because the petitioner had suffered no legal injury, but since S.N. Kumar had appeared, albeit as a respondent, and claimed relief against the decision of the Central Government not to appoint him for a further term and sought redress of the legal injury said to have been caused to him as a result of such decision, the lack of locus standi on the part of the petitioner was made good and the writ petition was maintainable. Mr. Mridul asserted that if S.N. Kumar had not appeared and sought relief against the decision of the Central Government discontinuing him as an additional Judge, the writ petition would have been liable to be rejected at the threshold on the ground that the petitioner had no locus standi to maintain the writ petition. This preliminary objection urged by Mr. Mridul raised a very interesting question of law relating to locus standi, or as the Americans call it ‘Standing’, in the area of public law. This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.
14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. The leading case in which this rule was enunciated and which marks the starting point of almost every discussion on locus standi is Ex parte Sidebotham (1980) 14 Ch D 458. There the Court was concerned with the question whether the appellant could be said to be a ‘person aggrieved’ so as to be entitled to maintain the appeal. The Court in a unanimous view held that the appellant was not entitled to maintain the appeal because he was not a ‘person aggrieved’ by the decision of the lower Court. James, L. J. gave a definition of ‘person aggrieved’ which, though given in the context of the right to appeal against a decision of a lower Court, has been applied widely in determining the standing of a person to seek judicial redress, with the result that it has stultified the growth of the law in regard to judicial remedies. The learned Lord Justice said that a ‘person aggrieved’ must be a man “who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.” Thus definition was approved by Lord Esher M. R. in In Re Reed Bowen & Co. (1887) 19 QBD 174 and the learned Master of the Rolls made it clear that when James L. J. said that a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him of something, he obviously meant that the person aggrieved must be a man who has been refused something which he had a right to demand. There have been numerous subsequent decisions of the English Courts where this definition has been applied for the purpose of determining whether the person seeking judicial redress had locus standi to maintain the action. It will be seen that, according to this rule, it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, there must be a corresponding duty owed by the other party to the applicant. This rule in regard to locus standi thus postulates a right-duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the Courts over the years.
15. In the first place a rate payer of a local authority is accorded standing to challenge an illegal action of the local authority. Thus, a rate payer can question the action of the municipality in granting a cinema licence to a person, vide : K.R. Shenoy v. Udipi Municipality . Similarly, the right of a rate payer to challenge misuse of funds by a municipality has also been recognised by the Courts vide : Varadarajan v. Salem Municipality.
. The reason for this liberalisation of the rule in the case of a tax payer of a municipality is that his interest in the application of the money of the municipality is direct and immediate and he has a close relationship with the municipality. The Courts in India have, in taking this view, followed the decisions of the English Courts. Secondly, if a person is entitled to participate in the proceedings relating to the decision making process culminating in the impugned decision he would have locus standi to maintain an action challenging the impugned decision. Vide : Queen v. Bowman (1898) 1 QB 663 where it was held that any member of the public had a right to be heard in opposition to an application for a licence and having such right, the applicant was entitled to ask for mandamus directing the licensing Justices to hear and determine the application for licence according to law. Thirdly, the statute itself may expressly recognise the locus standi of an applicant, even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury to him. For example, in J.M. Desai v. Roshan Kumar , this Court noticed that the Bombay Cinematograph Act. 1918 and the Bombay Cinema Rules, 1954 made under that Act, recognised a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc, located within a distance of 200 yards of the site on which the cinema house is proposed to be constructed and held that as the petitioner, a rival cinema owner, did not fall within the category of such persons having a special interest in the locality, he had no locus standi to maintain the petition for a writ of certiorari to quash the No Objection Certificate granted by the District Magistrate, to respondents Nos. 1 and 2. It is obvious from the observations made at page 72 (of SCR) : (at p. 586 of AIR of the Report that if the petitioner had been a person falling within this category of persons having a special interest in the locality, he would have been held entitled to maintain the petition. There is also another decision of this Court illustrating the situation where a statute expressly gives locus standi to persons to complain against a public wrong and that is the decision in Ratlam Municipality v. Vardhi Chand . The statutory provision which came up for consideration in this case was Section 133 of Criminal P. C. which empowers a Magistrate on receiving the report of a police officer or other information to make an order for remedying a public nuisance. What happened in this case was that the Ratlam Municipality filed to carry out its statutory duty of constructing a drain pipe to carry the filth etc. on a particular road. The local residents decided to invoke Section 133 of Criminal P. C. against the Municipality. The Magistrate made an order requiring the Municipality to construct drain pipes and this order was confirmed in appeal by this Court. The Municipality pleaded lack of funds but this was not accepted as a valid defence. However, to have a viable scheme keeping in view the financial position of the Municipality, this Court examined the three schemes submitted to it and directed the Municipality to implement one of them. The standing of the local residents to move the Magistrate was recognised since Section 133 of Criminal P. C. expressly conferred such right on them.
16. There is also another exception which has been carved out of this strict rule of standing which requires that the applicant for judicial redress must have suffered a legal wrong or injury in order to entitle him to maintain an action for such redress. It is clear that, having regard to this rule, no one can ordinarily seek judicial redress for legal injury suffered by another person; it is only, such other person who must bring action for judicial redress. It is on this principle that the Supreme Court of the United States held in United States v. James Griggs Raines. (1960) 362 US 17 : 4 L Ed 2d 524 that a litigant may only assert his own constitutional rights or immunities and save in exceptional cases, no person can claim standing to vindicate the constitutional rights of a third party. But it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go un-redressed and justice is done to him. Take for example, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obviously cannot on his own approach the Court because of his disability arising from minority. The law therefore provides that any other person acting as his next friend may bring an action in his name for judicial redress vide : Order XXXII of Civil P. C. So also where a person is detained and is therefore not in a position to move the Court for securing his release, any other person may file an application for a writ of habeas corpus challenging the legality of his detention. Of course, this Court has ruled in a number of cases that a prisoner is entitled to address a communication directly to the Court complaining against his detention and seeking release and if he addresses any such communication to the Court, the Superintendent of the prison is bound to forward it to the Court and, in fact, there have been numerous instances where this Court has acted on such communication received from a prisoner and treating it as an application for a writ of habeas corpus, called upon the detaining authority to justify the legality of such detention and on the failure of the detaining authority to do so, released the prisoner. But since a person detained would ordinarily be unable to communicate with the outside world, the law presumes that he will not be able to approach the Court and hence permits any other person to move the Court for judicial redress by filing an application for a writ of habeas corpus. Similarly, where a transaction is entered into by the Board of Directors of a company which is illegal or ultra vires the company, but the majority of the shareholders are in favour of it and hence it is not possible for the company to sue for setting aside the transaction, any shareholder may file an action impugning the transaction. Here it is the company which suffers a legal wrong or a legal injury by reason of the illegal or ultra vires transaction impugned in the action, but an individual shareholder is permitted to sue for redressing such legal wrong or injury to the company, because otherwise the company, being under the control of the majority shareholders would be without judicial redress. Vide: Atwood v. Merry Weather (1867) 5 Eq 464. The Judicial Committee of the Privy Council also affirmed this exception to the strict rule of standing in Durayappah v. Fernando (1967) 2 AC 337. There what happened was that the Jaffna Municipal Council was dissolved by the Minister of Local Government without giving it an opportunity to be heard. The order of dissolution was therefore voidable at the instance of the Council, but the Council did not complain. The appellant was a mayor at the time of the dissolution and he petitioned for a writ in the nature of certiorari to quash the order of dissolution. Lord Upjohn speaking on behalf of the Judicial Committee denied standing to the appellant in the following words:
The appellant was no doubt mayor at the time of its dissolution but that does not give him any right to complain independently of the Council. He must show that he is representing the Council or suing on its behalf or that by reason of certain circumstances, such, for example, as that the council could not use its seal because it is in the possession of the Municipal Commissioner, or for other reasons it has been impracticable for the members of the council to meet to pass the necessary resolutions, the council cannot be the plaintiff.
The Judicial Committee thus clearly laid down that for a legal wrong or legal injury caused to the council, it is only the council which can sue but if a member of the council can show that for some sufficient reasons it is not possible for the council to take action for challenging the order of dissolution, he can file an application for a writ to assert the right of the council and to redress the legal wrong or injury done to the council. We find that in the United States of America also this exception has been recognised and the strict rule of standing has been liberalised in the interest of justice. In Barrows v. Jackson (1952) 346 US 249 3 97 Law Ed 1586, the defendant was sued for breach of a restrictive covenant binding the defendant not to sell his property to non-cancacians and claiming damages. The defendant raised the plea that the judgment of the Court allowing damages for breach of the covenant would constitute denial of the equal protection clause to non-cancacians, because a prospective seller of restricted land would either refuse to sell to non-cancacians or else would require non-cancacians to pay a higher price to meet the damages which the seller may have to pay. The argument put forward in answer to this plea was that the defendant was not entitled to plead in defence the constitutional rights of non-Caucasians. But the Supreme Court of the United States negative his argument observing : “We are faced with a unique situation in which it is an action of the State Court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any Court”. Even in our own country we have recognised this departure from the strict rule of locus standi in cases where there has been a violation of the constitutional or legal rights of persons who by reason of their socially or economically disadvantaged position are unable to approach the Court for judicial redress. We have in such cases permitted a member of the public to move the Court for enforcement of the constitutional or legal rights of such persons and judicial redress for the legal wrong or legal injury caused to them. Take for example, the decision of this Court in Sunil Batra v. Delhi Administration where this Court accepted the habeas corpus petition of a prisoner complaining of brutal assault by a head warden on another prisoner. It may be incidentally mentioned and this is a point of some importance in the area of judicial remedies — that in this case the Court broadened the scope of habeas corpus by making it available to a prisoner, not only for seeking his liberty, but also for the enforcement of a constitutional right to which he was lawfully entitled even in confinement. Similarly, in Dr. Upendra Baxi v. State of U. P. (1981) 3 Scale 1137 when it was found that the inmates of the Protective Home at Agra were living in inhuman and degarding conditions in blatant violation of Article 21 of the Constitution and by reason of their socially and economically disadvantaged position, they were not in a position to move the Court for judicial redress, two law professors of the Delhi University addressed a letter, to this Court seeking enforcement of the constitutional right of the inmates under Article 21 by improvement of the living conditions in the Protective Home, so that the inmates can live with human dignity in the Protective Home. This Court treated the letter as a writ petition and permitted the two law professors to maintain an action for an appropriate writ for the purpose of enforcing the constitutional right of the inmates of the Protective Home and providing judicial redress to them. This Court has also entertained a letter addressed by a journalist claiming relief against demolition of hutments of pavement dwellers by the Municipal Corporation of Bombay and this letter has been treated as a Writ Petition by a Bench presided over by the Chief Justice of India and interim relief has been granted to the pavement dwellers.
17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them, This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshhold, whether it be in the form of a letter ad-dressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases, where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain eases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.
18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public in-Jury must go unredressed. To answer these questions it is first of all necessary to understand what is the true purpose of the Judicial function. This is what Prof. Thio states in his book on “Locus Standi and Judicial Review”;
Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (Jurisdiction de droit objectif) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory that Courts are the final arbiters of what is legal and illegal ….Requirement? of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed.
We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Lord Dip-lock rightly said in Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 at p. 740:
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped…. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. It was pointed out by Schwartz and H.W.R. Wade in their book on “Legal Control of Government” at page 354:
Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?” It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law.
19. There is also another reason why the rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rights have ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today’s setting unless accompanied by the social rights necessary to make them effective and really accessible to all. The new social and economic rights which are sought to be created in pursuance of the Directive Principles of State Policy essentially require active intervention of the State and other public authorities. Amongst these social and economic rights are freedom from indigency, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from financial commercial, corporate or even governmental oppression. More and more frequently the conferment of these socio-economic rights and imposition of public duties on the State and other authorities for taking positive action generates situations in which single human action can be beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party affair. For example, the discharge of affluent in a lake or river may harm all who want to enjoy its clean water; emission of noxious gas may cause injury to large numbers of people who inhale it along with the air, defective or unhealthy packaging may cause damage to all consumers of goods and so also illegal raising of railway or bus fares may affect the entire public which wants to use the railway or bus as a means of transport. In cases of this kind it would not be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. What results in such cases is public injury and it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons: public injury is an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by the State or a public authority not to any specific or determinate class or group of persons, but to the general public. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual.
19A. Now, as pointed out by Cappellatti in Vol III of his classic work on “Access to Justice” at page 520, “The traditional doctrine of standing (legitimatio ad causam) attributes the right to sue either to the private individual who ‘holds’ the right which is in need of judicial protection or in case of public rights, to the State itself, which sues in courts through its organs”. The principle underlying the traditional rule of standing is that only the holder of the right can sue and it is therefore, held in many jurisdictions that since the State representing the public is the holder of the public rights, it alone can sue for redress of public injury or vindication of public interest. It is on this principle that in the United Kingdom, the Attorney-General is entrusted with the function of enforcing due observance of the law. The Attorney-General represents the public interest in its entirety and as pointed out by S.A. de Smith in “Judicial Review of Administrative Action” (Third edition) at page 403; “the general public has an interest in seeing that the law is obeyed and for this purpose, the Attorney General represents the public.” There is, therefore, a machinery in the United Kingdom for judicial redress for public injury and protection of social, collective, what Cappellatti calls ‘diffuse’ rights and interests. We have no such machinery here. We have undoubtedly an Attorney General as also Advocates General in the States, but they do not represent the public interest generally. They do so in a very limited field; see Sections 91 and 92 of the Civil Procedure Code, But, even if we had a provision empowering the Attorney General or the Advocate General to take action for vindicating public interest, I doubt very much whether it would be effective. The Attorney General or the Advocate General would be too dependent upon the political branches of Government to act as an advocate against abuses which are frequently generated at least tolerated by political and administrative bodies. Be that as it may, the fact remains that we have no such institution in our country and we have therefore to liberalise the rule of standing in order to provide judicial redress for public injury arising from breach of public duty or from other violation of the Constitution or the law. If public duties are to be enforced and social collective ‘diffused’ rights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though they may not be directly injured in their own rights. It is for this reason that in public interest litigation — litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective, ‘diffused’ rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting ‘sufficient interest’, It has necessarily to be left to the discretion of the Court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective ‘diffuse’ rights and interests and imposing new public duties on the State and other public authorities, infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The Judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action.
20. It is interesting to note that the concept of public interest litigation had its origin in the United States and over the years, it has passed through various vicissitudes in the country of its origin. We do not propose to enumerate or examine various decisions given by the Supreme Court of the United States from time to time in regard to standing in public interest litigation, for no useful purpose would be served by such exercise. Suffice it to state that in that country, the strict requirement of legal interest has been watered down. Justice Douglas said in Association of Data Processing Service v. William B. Camp (1970) 397 US 150 : 25 Law Ed 2d 184 that “the legal interest test goes to the merits. The question of standing is different”. Similarly Justice Brennan, citing Flast, observed that “the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not…whether the plaintiff had a legally protected interest which the defendant’s action invaded” Italics (herein underline) supplied). This view also found expression in Office of Communication of United Church of Christ v. FCC 123 US App DC 328 where the standing of television viewers was upheld with the following observations: Since the concept of standing is “one designed to assure that only one with a genuine and legitimate interest can participate in a proceeding, we can see no reason to exclude those with such an obvious and acute concern as the listening audience.” Vide article on “Evolving Trends in Locus Standi: Models For Decision-Making” by D.Y. Chandrachud. But of late, there has been a slight regression in this dynamic approach. See United States v. William B. Richardson (1974) 418 US 166 and Warth v. Seldin (1974) 422 US 490, where the Supreme Court of United States seems to have recoiled a little against expansion of its judicial power.
21. So far as the United Kingdom is concerned, there have been remarkable developments in this area in recent times largely due to the dynamic activism of Lord Denning. The Mc Whirter case and the three well known Blackburn cases clearly establish that any member of the public having sufficient interest can maintain an action for enforcing a public duty against a statutory or public authority. We need not make a detailed reference to all these cases but it will be sufficient if we refer to the Mc Whirter case and one of the three Blackburn cases. The McWhirter case is reported in Attorney General v, Independent Broadcasting Authority (1973) 1. All ER 689. This was an action by McWhirter for injunction against the Broadcasting Authority which was threatening to show a film which did not comply with the statutory requirements and the showing of which would therefore be illegal. Lord Denning considered the question whether McWhirter had locus standi to bring the action when leave to bring a relator action was refused by the Attorney General, and answering this question in the affirmative, he said:
We live in an age when Parliament has placed statutory duties on government departments and public authorities for the benefit of the public — but has provided no remedy for the breach of them. If a government department or a public authority transgresses the law laid down by Parliament, or threatens to transgress it, can a member of the public come to the Court and draw the matter to its attention…I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has sufficient interest, can himself apply to the court itself.
Lord Denning held that McWhirter had sufficient interest to bring the action since he had a television set for which he had paid licence fee and his susceptibility would be offended like that of many others watching television if the film was shown in breach of the statutory requirements. It may be noticed that in this case the duty which was sought to be enforced against the Broadcasting Authority was one which the Broadcasting Authority owed to the general public and not to any specific individual or class or group of individuals. The same principle was applied by Lord Denning in Reg v. Greater London Council, Ex parte Blackburn (1976) 3 All ER 184 to accord standing to Blackburn to maintain an action for an order of prohibition preventing the greater London Council from allowing, contrary to law, the exhibition of pornographic films. Here again the duty owed by the Greater London Council was to the general public and not to any specific or determinate class or group of persons and there was no one who could claim that a specific legal injury was caused to him by the exhibition of pornographic films. But even so Lord Denning held that Blackburn was entitled to maintain an action because he had sufficient interest, he was a citizen of London, his wife was a rate payer and he had children who might be harmed by the exhibition of pornographic films. The learned Master of the Rolls emphasized that if Blackburn had no sufficient interest, no other citizen had, and in that event no one would be able to bring an action for enforcing the law and the transgression of the law would continue unabated. The principle on which the learned Master of the Rolls proceeded was formulated by him in these words:
I regard it as a matter of high constitutional principle, that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of his Majesty’s subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.
The House of Lords, of course, in Gouriet v. UPW 1978 AC 482 took the view that the Attorney General alone can sue for enforcing the observance of the law and if he refuses to give his consent to a relator action, such refusal was not review-able by the courts and without such consent, a member of the public could not maintain his action. We do not think it necessary to examine this decision because it has no binding effect upon us. But we may point out that this decision Las been severely criticised by jurists in England and elsewhere. It is clearly erroneous and shows the high water mark of abdication of judicial power which is likely to stultify the development of public law in the United Kingdom. There is however one distinguishing feature which we must point out, namely, that the action in that case was a relator action and not application for a writ.
22. We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective “Law”, as pointed out by Justice Krishna Iyer in Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344 “is a social auditor and this audit function can be put into action when some one with real public interest ignites the jurisdiction. A fear is sometimes expressed that if we keep the door wide open for any member of the public to enter the portals of the Court to enforce public duty or to vindicate public interest, the Court will be flooded with litigation. But this fear is totally unfounded and the argument based upon it is answered completely by the Australian Law Reforms Commission in the following words:
The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the court room (Prof. K.E. Scott “Standing in the Supreme Court: A Functional Analysis” (1973) 86) A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered.
… Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor Scott commented: (Op Cit, 673) ‘When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissenters feared.
Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.
We wholly endorse these remarks of the Australian Law Reforms Commission. We may add, with Justice Krishna Iyer: “In a society where freedoms suffer from atrophy, and activism is essential for participative public justice, some risks have to be taken and more opportunities open-ed for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.” It is also interesting to note that in India, as in other Commonwealth countries, the strict rule of standing does not apply to a writ of quo warranto or a rate payer’s action against a municipality, but there is no evidence that this has let loose the flood gates of litigation in these areas. The time, money and other inconveniences involved in litigating a case act as sufficient deterrents for most of us to take recourse to legal action vide article of Dr. S.N. Jain on “Standing and Public Interest Litigation.”
23. But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that “political pressure groups who could not achieve their aims through the administrative process” and we might add, through the political process, “may try to use the courts to further their aims.” These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born.
24. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.
25. If we apply these principles to determine the question of locus standi in the writ petition of Iqbal Chagla & Ors. in which alone this question has been sharply raised, it will be obvious that the petitioners had clearly and indisputably locus standi to maintain their writ petition. The petitioners are lawyers practising in the High Court of Bombay. The first petitioner is a member of the Bombay Bar Association, petitioners, Nos. 2 and 3 are members of the Advocates Association of Western India and petitioner No. 4 is the President of the Incorporated Law Society. There can be no doubt that the petitioners have a vital interest in the independence of the judiciary and if an unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, the petitioners would certainly be interested in challenging the constitutionality or legality of such action. The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justice and it can hardly be disputed that without their help, it would be well nigh impossible for the Court to administer justice. They are really and truly officers of the Court in which they daily sit and practice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority, they would naturally be concerned about it, because, they are equal partners with the Judges in the administration of justice. Iqbal Chagla and others cannot be regarded as mere bystanders or meddlesome interlopers in filing the writ petition; The complaint of the petitioners in the writ petition was that the circular letter issued by the Law Minister constituted a serious threat to the independence of the judiciary and it was unconstitutional and void and if this complaint be true, and for the purpose of determining the standing of the petitioners to file the writ petition, we must assume this complaint to be correct the petitioners already had locus standi to maintain the writ petition. The circular letter, on the averments made in the writ petition, did not cause any specific legal injury to an individual or to a determinate class or group of individuals, but it caused public injury by prejudicially affecting the independence of the judiciary. The petitioners being lawyers had sufficient interest to challenge the constitutionality of the circular letter and they were, therefore, entitled to file the writ petition as a public interest litigation. They had clearly a concern deeper than that of a busybody and they cannot be told off at the gates. We may point out that this was precisely the principle applied by this Court to uphold the standing of the Fertiliser Corporation Kamgar Union to challenge the sale of a part of the undertaking by the Fertiliser Corporation of India in Fertiliser Corporation Kamgar Union v. Union of India AIR 1981 SC 344 (supra). Justice Krishna Iyer pointed out that if a citizen “belongs to an organisation 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.” We must, therefore, hold that Iqbal Chagla and others had locus standi to maintain their writ petition. What we have said in relation to the writ petition of Iqbal Chagla and others must apply equally in relation to the writ petitions of S.P. Gupta and J.C. Kalra and others. So far as the writ petition of V.M. Tarkunde is concerned, Mr Mridul, learned advocate appearing on behalf of the Law Minister, did not contest the maintainability of that writ petition since S.N. Kumar to whom, according to the averments made in the writ petition, a specific legal injury was caused, appeared in the writ petition and claimed relief against the decision of the Central Government to discontinue him as an additional Judge. We must, therefore, reject the preliminary objection raised by Mr. Mridul challenging the locus standi of the petitioners in the first group of writ petitions.
Concept of Independence of the Judiciary
26. Having disposed of the preliminary objection in regard to locus standi of the petitioners, we may now proceed to consider the questions which arise for determination in these writ petitions. The questions are of great constitutional significance affecting the principle of independence of the judiciary which is a basic feature of the Constitution and we would therefore prefer to begin the discussion by making a few prefatory remarks highlighting what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned rational charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socio-economic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice. The British concept of justicing, which to quote Justice Krishna Iyer, is still “hugged by the heirs of our colonial legal culture and shared by many on the Bench” is that “the business of a Judge is to hold his tongue until the last possible moment and to try to be as wise as he is paid to look” and in the same strain are the words quoted by professor Gordon Reid from a memorandum to the Victorian Government by Irvin, C. J. in 1923 where the judicial function was idealised in the following words:
The duty of His Majesty’s Judges is to hear and determine issues of fact and of law arising between the king and the subject or between a subject and a subject presented in a form enabling judgment to be passed upon them, and when passed, to be enforced by a process of law. There begins and ends the function of the judiciary.
Now this approach to the judicial function may be all right for a stable and static society but not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice between chronic un-equals. Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values. The necessity of a judiciary which is in tune with the social philosophy of the Constitution has nowhere been better emphasized than in the words of Justice Krishna Iyer which we quote:
Appointment of Judges is a serious process where judicial expertise, legal learning, life’s experience and high integrity are components, but above all are two indispensables — social philosophy in active unison with the socialistic Articles of the Constitution, and second, but equally important, built-in resistance to pushes and pressures by class interests, private prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements.
Justice Krishna Iyer goes on to say in his inimitable style:
Justice Cardozo approvingly quoted President Theodore Roosevelt’s stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, mast be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.
What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blue-print of the appointment project for the higher echelons of judicial service. It is only if appointments of Judge are made with these considerations weighing predominently with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India. The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armory of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse of abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth’s case (supra). But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer:
Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government’s pleasure.
The tycoon, the communalist the parochialist, the faddist, the extremist and radical reactionary lying coiled up and sub-consciously shaping judicial mentations are menaces to judicial independence when they are at variance with Parts III and IV of the Paramount Parchment.
Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you.” This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we roust keep in mind while interpreting the relevant provisions of the Constitution. Can mandamus issue for fixation of strength of Judges in a High Court: Article 216:
27. We may first examine the true meaning and import of Article 216 which provides for the Constitution of High Courts. This Article when originally enacted in the Constitution consisted of the main provision and a proviso but the proviso was deleted by Section 11 of the Constitution (Seventh Amendment) Act, 1956 with the result that since 1st Nov., 1956 when the amending Act came into force, this Article consists of only one clause which 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.
This Article confers power on the President to appoint such number of Judges in a High Court as he may deem necessary. The Union of India has placed before us figures showing that as on 18th Mar., 1981 the aggregate sanctioned strength of permanent and additional Judges was 308 and 97 respectively while the aggregate actual strength was only 277 and 43 respectively. The figures given by the Union of India also show the large arrears pending in the different High Courts and it is clear from these figures that the total number of pending main cases has been steadily rising from 6,13,799 on 31st Dec. 1978 to 6,78,951 on 31st Dec., 1980. The average rate of disposals per Judge per year fixed at one of the Chief Justice’ Conference was 650 but the figures produced by the Union of India show that the average rate of disposals of main cases per Judge per year during the years 1978-1979 and 1980 was higher namely, 860. It is obvious that even on the basis of the average rate of disposals per Judge per year being taken at the higher figure of 860; if no judicial reform is brought about and the present system continues as it is without any change, many more Judges would be required than the total sanctioned strength of permanent and additional Judges in order to dispose of the pending cases which include not only main cases but also interlocutory and miscellaneous cases which do take the time of the Court. It was therefore contended on behalf of the petitioners that the President has failed to discharge his constitutional duty under Article 216 by not appointing the requisite number of Judges necessary for the purpose of disposing of the pending cases. The argument was that the President was under a constitutional obligation to apply his mind to the question as to how many Judges were necessary to be appointed in each High Court for the purpose of disposing of the cases pending in that High Court, but the President had failed to apply his mind to this question and not taken the necessary steps for the purpose of appointing the requisite number of Judges in each High Court. The petitioners therefore sought a writ of mandamus against the Union of India requiring the Union of India to re-fix the strength of Judges in each High Court having regard to the number of pending cases in that High Court and on the basis of the average rate of disposals per judge per year. We do not think we can issue such a writ of mandamus against the Union of India for fixing a particular strength of judges in each High Court. The fixation of the strength of judges in each High Court is a purely executive function which is entrusted by Article 216 to the President, that is, the Government of India and it is entirely for the Government of India to decide in the exercise of its judgment as to what shall be the strength of judges in each High Court. How many judges are necessary to be appointed in a particular High Court is left to the discretion of the Government of India and there are no judicially manageable standards for the purpose of controlling or guiding the discretion of the Union of India in that respect. It is not possible for this Court to lay down any standards or norms on the basis of which it can require the Union of India to appoint a certain number of Judges in a particular High Court. The fixation of the number of judges necessary to be appointed in a particular High Court does not depend upon the application of a mathematical formula dividing the number of pending cases by the average rate of disposal per judge per year. It is singularly complex problem and merely increasing the number of judges in a High Court would not necessarily solve the problem of disposal of pending cases. Some times when the number of judges in a High Court is increased, the law of diminishing returns begins to operate and the disposal of cases do not increase commensurately with the addition to the number of judges. Sometimes it is difficult to recruit competent judges and no useful purpose is served by appointing mediocre judges who ultimately would not be able to make any impact so far as the arrears of pending cases are concerned and who would dilute the quality of justice administered in the High Court. Then there are also problems of finding court rooms for the new judges who might be appointed because at most places the High Court buildings are heavily congested and there is hardly any space which can be spared. There may also be many other constraints operating with the Government of India which may dissuade it from taking a decision to increase the number of judges in a High Court. The Government of India may legitimately feel that increasing the number of judges in a particular High Court may not solve the problem of arrears of pending cases but that some other strategies may have to be adopted for that purpose, such as the setting up of administrative tribunals or reducing the number of appeals etc. There would therefore be many policy considerations which would influence the Government of India in taking a decision as to what number of judges are necessary to be appointed in a particular High Court. It would not be possible to lay down any judicially manageable standards with reference to which the Government of India could be directed to appoint a particular number of judges in a High Court. What should be the number of Judges necessary to be appointed in a particular High Court must essentially remain a matter within the discretion of the Government of India and if the Government of India does not appoint sufficient number of judges, the appeal must be to the legislature and not to the Court. All that the Court can do is to express the hope that the Govt. of India will periodically review the strength of judges in each High Court and appoint as many judges as are found necessary for the purpose of disposing of arrears of pending cases.
The power of Appointment of Judges Article 217.
28. The next question that arises for consideration is as to where is the power to appoint Judges of the High Courts and the Supreme Court located? Who has the final voice in the appointment of Judges of High Courts and the Supreme Court? The power of appointment of Judges of the Supreme Court is to be found in Clause (2) of Article 124 and this clause provides that every Judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose, provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. It is obvious on a plain reading of Clause (2) of Article 124 that it is the President, which in effect and substance means the Central Government, which is empowered by the Constitution to appoint Judges of the Supreme Court. So also Article 217, Clause (1) Vests the power of appointment of Judges of High Courts in the Central Government, but such power is exercisable only “after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.” It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government. It is not an unfettered power in the sense that the Central Government cannot (can?) act arbitrarily without consulting the constitutional functionaries specified in the two Articles but it can act only after consulting them and the consultation must be full and effective consultation.
29. The question immediately arises what constitutes ‘consultation’ within the meaning of Clause (2) of Article 124 and Clause (1) of Article 217, Fortunately, this question is no longer res integra and it stands concluded by the decision of this Court in Sankalchand Sheth’s case (supra). It is true that the question in Sankalchand Sheth’s case (supra) related to the scope and meaning of ‘consultation’ in Clause (1) of Article 222, but it was common ground between the parties that ‘consultation’ for the purpose of Clause (2) of Article 124 and Clause (1) of Article 217 has the same meaning and content as ‘consultation’ in Clause (1) of Article 222. Chandrachud, J., as he then was in his judgment in Sankalchand Sheth’s case (supra) quoted with approval the following passage from the judgment given by Justice Subba Rao,. when he was a Judge of the Madras High Court in R. Pushpam v. State 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” and added “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”. Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that “all the materials in the possession of one whe consults must be unreservedly placed before the consultee and further a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him,” and “the consultant in turn must take the matter seriously since the subject is of grave importance.” The learned Judge proceeded to add: “Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system.” These observations apply with equal force to determine the scope and meaning of ‘consultation’ within the meaning of Clause (2) of Article 124 and Clause (1) of Article 217. Bach of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge. But, while giving the fullest meaning and effect to consultation’, it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. We agree with what Krishna Iyer, J. said in Sankalchand Sheth’s case (supra) that “consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur.” It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Govt. in defiance of such unanimous opinion, it may become vulnerable to attack on the ground that it is mala fide or leased on irrelevant grounds. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it. We may, however, make it clear that on a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is open, to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional, functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations. Where there is a difference of opinion amongst the constitutional functionaries who are consulted, it is for the Central Government to decide whose opinion should be accepted and whether appointment should be made or not. It was contended on behalf of the petitioners that where there is difference of opinion amongst the constitutional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and patercollegium familias of the judicial fraternity. We find ourselves unable to accept this contention. It is difficult to see on what principle can primacy be given to the opinion of one constitutional functionary, when Clause (1) of Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned and does not make any distinction between, one constitutional functionary and another. Each of the three constitutional functionaries occupies a high constitutional office and Clause (1) of Article 217 provides that the appointment of a High Court Judge shall be made after consultation with all the three constitutional functionaries without assigning superiorty to the opinion of one over that of another. It is true that the Chief Justice of India is the head of the Indian judiciary and may be figuratively described as pater familias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional, functionary and it is not possible to say that so far as the consultative process is concerned, he is in any way less important than the Chief Justice of India. In fact, under the constitutional scheme, the Chief Justice of a High Court, is not subject to the administrative superintendence of the Chief Justice of India nor is he under the control or supervision of the Chief Justice of India. It is only the power of hearing appeals against the decision of the Chief Justice of a High Court that is possessed by the Chief Justice of India and there, his superiority over the Chief Justice of the High Court ends. If we look at the raison detre of the provision for consultation enacted in Clause (1) of Article 217, it will be obvious that the opinion given by the Chief Justice of the High Court must have at least equal weight as the opinion of the Chief Justice of India, because Ordinarily the Chief Justice of the High Court would be in a better position to know about the competence, character and integrity of the person recommended for appointment as a Judge in the High Court. The opinion of the Governor of the State, which means the State Government would also be entitled to equal weight, not in regard to the technical competence of the person recommended and his knowledge and perception of law oh which the Chief Justice of the High Court would be the proper person to express an opinion, but in regard to the, character and integrity of such person, his antecedents and his social philosophy and value-system. So also the opinion of the Chief Justice of India would be valuable because he would not be affected by caste, communal or other parochial considerations and standing outside the turmoil of local passions and prejudices, lie would be able to look objectively at the problem of appointment. There is therefore, a valid and intelligible purpose for which the opinion of each of the three constitutional functionaries is invited before the Central Government can take a decision whether or not to appoint a particular, person as a Judge in a High Court. The opinion of each of the three constitutional functionaries is entitled to equal weight and it is not possible to say that the opinion of the Chief Justice of India must have primacy over the opinions of the other two constitutional functionaries. If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance, amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion. But as we pointed out earlier, it is only consultation and not. concurrence of the Chief Justice of India that is provided in Clause (1) of Article 217. When, in the course of debates in the Constituent Assembly, an amendment was moved that the appointment of a Judge of a High Court or the Supreme Court should be made with the concurrence of the Chief Justice of India, Dr. B.R. Ambedkar made the following comment which is very significant:
With regard to the question of the concurrence of the Chief Justice, it seems to me that those 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.
It is, therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government is entitled to come to its own decision as to which opinion It should accept in deciding whether or not to appoint the particular person as a Judge. So also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is required to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Justice of India. The ultimate power of appointment rests with the Central Government and that is in accord with the constitutional practice prevailing in all democratic countries. Even in the United Kingdom, a country from which we have inherited our system of administration of justice and to which many of our anglophiles turn with reverence for inspiration and guidance, the appointment of High Court Judges is made by or on the advice of the Lord Chancellor, who is a member of the Cabinet while appointments to the Court of appeal and the House of Lords and to the offices of Lord Chief Justice Master of the Rolls and President of the family Division are made on the advice of the Prime Minister after consultation with the Lord Chancellor. Thus the appointment of a Judge belonging to the higher echelons of judicial service is wholly in the hands of the Executive. So also in the commonwealth countries like Canada, Australia and New Zealand, the appointment of High Court and Supreme Court Judges is made by the Executive. This is, of course, not an ideal system of appointment of Judges, but the reason why the power of appointment of Judges is left to the Executive appears to be that the Executive is responsible to the Legislature and through the Legislature, it is accountable to the people who are consumers of justice. The power of appointment of Judges is not entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not have any accountability to the people and even if any wrong or improper appointment is made, they are not liable to account to anyone for such appointment. The appointment of a Judge of a High Court or the Supreme Court does not depend merely upon the professional or functional suitability of the person concerned in terms of experience or knowledge of law though this requirement is certainly important and vital and ignoring it might result in impairment of the efficiency of administration of justice, but also on several other considerations such as honesty, integrity and general pattern of behaviour which would ensure dispassionate and objective adjudication with an open mind, free and fearless approach to matters in issue, social acceptability of the person concerned to the high Judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system. These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a Judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive. But, as pointed out above, there is a fetter placed upon the power of appointment by the requirement of consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India in case of appointment of a High Court Judge and with the Chief Justice of India in case of appointment of a Supreme Court Judge.
30. However, at this stage, it is necessary to point out that so far as appointment of a Supreme Court Judge is concerned, it is not consultation with the Chief Justice of India alone that is provided in Clause (2) of Article 124. Undoubtedly, consultation with the Chief Justice of India is a mandatory requirement but in addition “such of the Judges of the Supreme Court and of the High Courts” as the Central Government may deem necessary are also required to be consulted. One argument advanced on behalf of the petitioners was that when Clause (2) of Article 124 uses the expression “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”, it does not impose a mandatory obligation on the Central Government to consult one or more of the Judges of the Supreme Court or the High Courts but it leaves it to the discretion of the Central Government whether or not to consult one or more of the Judges of the Supreme Court or the High Courts before making appointment of a Judge of the Supreme Court. The petitioners contended that the Central Government may, if it thinks fit, consult one or more of the Judges of the Supreme Court and of the High Courts or it may not consult any and where it does not, the Chief Justice of India will be the only constitutional functionary required to be consulted and in such a case the Central Government must accept the opinion of the Chief Justice of India as binding upon it We do not think this argument is well founded. In the first place it is not justified by the plain language of Clause (2) of Article 124. This clause clearly provides for consultation as a mandatory exercise and the only matter which is left to the discretion of the Central Government is the choice of the Judge of the Supreme Court and the High Courts who may be consulted. The words “as the President may deem necessary” qualify only the preceding words “such of the Judges of the Supreme Court and of the High Courts’ in the States”. Which of the Judges of the Supreme Court and of the High Courts should be consulted is left to the discretion of the Central Government but consultation there must be with one or more of the Judges of the Supreme Court and of the High Courts. The Central Government must consult at least one Judge out of the Judges of the Supreme Court and of the High Courts before exercising the power of appointment conferred by Clause (2) of Article 124. This requirement is prescribed obviously because the Constitution makers did not think it desirable that one person alone, howsoever high and eminent he may be, should have a predominent voice in the appointment of a Judge of the Supreme Court. But it seems that this requirement is not complied with in making appointments on the Supreme Court Bench presumably under a misconception that it is not a mandatory but only an optional provision. The result is that the Chief Justice of India alone is consulted in the matter of appointment of a Supreme Court Judge and largely as a result of a healthy practice followed through the years, the recommendation of the Chief Justice of India is ordinarily accepted by the Central Government, the consequence being that in a highly important matter like the appointment of a Supreme Court Judge, it is the decision of the Chief Justice of India which is ordinarily, for all practical purposes final. But, as it happens, there are no criteria laid down or evolved to guide the Chief Justice in this respect nor is there any consultation with wider interests. This is, to our mind, not a very satisfactory mode of appointment, because wisdom and experience demand that no power should be vested in a single individual howsoever high and great he may be and howsoever honest and well meaning. We are all human beings with our own likes and dislikes, our own predilections and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations, It may also be noticed that it is not difficult to find reasons to justify what our bias or predeliction or inclination impels us to do. It is for this reason that we think it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be, checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. That is perhaps the reason why the Constitution makers introduced the requirement in Clause (2) of Article 124 that one or more Judges out of the Judges of the Supreme Court and of the High Courts should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to the Central Government to select any one or more of the Judges of the Supreme Court and of the High Courts for the purpose of consultation. We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge, The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential — it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would Invest the judicial process with significance and meaning, for the deprived and exploited sections of humanity. We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary. As recently as July, 1977 the Chief Justice of Australia publicly stated that the time had come for such a commission to be appointed in Australia. So also in New Zealand, the Royal Commission on the Courts chaired by Mr. Justice Beattle, who has now become the Governor General of New Zealand, recommended that a Judicial Commission should consider all Judicial appointments including appointments of High Court Judges. This is a matter which may well receive serious attention of the Government of India. The position of an Additional Judge Article 224.
31. We then turn to consider what is the position of an additional Judge under the Constitution. This question is of the greatest importance because as against a total sanctioned strength of 308 permanent Judges, there is a total sanctioned strength of as many as 97 additional Judges, which means that the total sanctioned strength of additional Judges is almost one third the total sanctioned strength of permanent Judges. There are a large number of additional Judges in various High Courts whose tenure is short and precarious and their fate should therefore naturally be a matter of serious concern for this Court. The power to appoint an additional Judge in a High Court is to be found in Clause (1) of Article 224 which reads as follows:
If by season 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.
Clause (2) of Article 224 provides for appointment of an acting Judge during the period 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 temporarily as Chief Justice. It is obvious that the tenure of an acting Judge is by its very nature limited because he is appointed to act as a Judge only during the period when the permanent Judge in whose place he is acting is unable to perform the duties of his office and he would therefore cease to be a Judge as soon as the permanent Judge resumes his duties. We are not concerned in these writ petitions with the case of an acting Judge and we need not therefore dwell any further on this clause. Clause (3) of Article 224 provides inter alia that no person appointed as an additional Judge shall hold office after attaining the age of 62 years. Therefore even if an additional Judge has been appointed for a period of two years, he would cease to be a Judge if he attains the age of 62 years prior to the expiration of his term of two years.
32. It is clear from the provisions of Clause (1) of Article 224 that the maximum period for which an additional Judge can be appointed by the President is two years. This provision for appointment of a Judge for a period not exceeding two years seems to be peculiar to this country. There is no such practice of appointing a Judge for a short term either in the United Kingdom or in the United States of America. Even in India, there are no Judges either in the Supreme Court or in the subordinate judiciary whose tenure is so short. It is rather an unusual provision and in order to understand its true scope and effect, it is necessary to trace briefly its historical evolution.
33. There was no provision in the High Courts Act or the Charter Act, 1861 for appointment of an additional Judge with a restricted tenure in a High Court. It was for the first time in the Govt. of India Act, 1915 that a provision was enacted for appointment of additional Judges. Sub-section (2) of Section 101 provided that each High Court shall consist of the Chief Justice and as many other Judges as His Majesty may think fit to appoint and Clause (i) of the proviso to that sub-section authorised the Governor General in Council to appoint persons to act as additional Judges of any High Court for such period not exceeding two years as may be required. The additional Judges were to have all the powers of a Judge of the High Court appointed by His Majesty, The Government of India Act, 1915 was replaced by the Government of India Act, 1935 and Section 220 of that Act provided that every High Court shall consist of a Chief Justice and such other Judges as His Majesty may from time to time deem it necessary to appoint and there was a proviso to this section which said that the Judges so. appointed together with any additional Judges appointed, by the Governor General shall at no time exceed in number such maximum number as the Governor-General may by order fix in relation to that Court, Section 222 Sub-section (3) provided for appointment of additional Judges in these terms:
Section 222(3). If by reason of any temporary increase in the business of any High Court or by reason of arrears of work in any such Court it appears to the Governor-General that the number of the Judges of the Court should be for the time being increased, the Governor-General (in his discretion) may, subject to the foregoing provisions of this chapter with respect to them maximum number of Judges, appoint persons duly qualified for appointment as Judges to be additional Judges of the Court for such period not exceeding two years as he may specify.
The System of appointment of additional Judges was therefore in vogue when the Constituent Assembly met to frame the Constitution. Article 199 of the Draft Constitution was almost in the same terms as Sub-section (3) of Section 222 of the Government of India Act, 1935. There was also Article 198 in the Draft Constitution which in Clause (1) provided for appointment of an acting Chief Justice and in Clause (2) for appointment of an acting Judge. The provision for appointment of an acting Judge made in Clause (2) of Article 198 was that when the office of any Judge of a High Court is vacant or when any such Judge is appointed to act temporarily as a Chief Justice or is unable to perform the duties of his office by reason of absence or otherwise, the President may appoint a person duly qualified for appointment as a Judge to act as a Judge of that Court, The acting Judge contemplated by this clause of Article 198 was therefore clearly a temporary Judge. Now when Articles 198 and 199 in the Draft Constitution came to be considered in the Constituent Assembly, a number of representations were received suggesting that both these articles should be deleted from the Constitution. It was felt by many that the practice of appointing acting or additional Judges was pernicious and it should be done away with. Tej Bahadur Sapru expressed his firm opposition to this practice of appointing, acting or additional Judges in the course of his speech in the Constituent Assembly. He said, decrying this practice in no uncertain terms:
Additional Judges, under the old Constitution were appointed by the Governor-General for a period not exceeding two years. I do not know whether that condition has been reproduced in the proposed Constitution. This prohibition, however, does not apply to acting judges or temporary judges. I think the rule in future should be that any barrister or advocate, who accepts a seat on the Bench, shall be prohibited from resuming practice anywhere on retirement. I would not, however, apply this to temporary judges taken from the services who hold a seat on the Bench for a few months. but I would add that the practice of appointing additional and temporary judges should be definitely given up. When I said at the Round Table Conference that there were acting, additional and temporary judges in India, some of the English lawyers not accustomed to India Law felt rather surprised. I am also of the opinion that temporary or acting judges do greater harm than permanent judges, when after their seat on the Bench for a short period they revert to the Bar. A seat on the Bench gives them a pre-eminence over their colleagues and embarrasses the subordinate judges who were at one time under their control and thus instead of their helping justice they act as a hindrance to free justice. I have very strong feeling in this matter and have during my long experience seen the evil effects of unchecked resumption of practice by barristers and advocates.
There were also many others who expressed the same view. The Drafting Committee agreed with this view and expressed the opinion that “it would be better to delete Articles 198 and 199 relating to the appointment of temporary and additional Judges, than to retain those articles without the ban on practice by persons who hold office as additional or temporary judges.” The Drafting Committee took the view that “it was possible to discontinue the system of appointment of temporary and additional Judges in the High Courts altogether by increasing, if necessary, the total number of permanent judges of such Courts.” The Constituent Assembly adopted the recommendation of the Drafting Committee to delete Articles 188(2) and 199 of the Draft Constitution providing for appointment of acting and additional Judges in High Courts, with the result that when the Constitution came to be enacted, there was no provision in the Constitution for appointment of acting or additional Judges.
34. It is clear from the discussions which took place in the Constituent Assembly that the Constitution makers realised that an acting or additional Judge would have to go back to the Bar on the expiration of his term of office and his tenure was of a strictly limited duration. The Constitution makers did not oppose the practice of appointing acting or additional Judge on the ground that on the expiration of his term of office, an acting or additional Judge would have to go back to the Bar, but their anxiety was that after going back to the Bar he would resume his practice and this might lead to abuses and it was this undesirable consequence which they wanted to prevent and that is why they deleted Articles 198(2) and 199 with a view to abolishing the practice of appointing acting or additional Judges. The underlying postulate of Articles 198(2) and 199 was that an acting or additional Judge would come back to the Bar on the expiration of his term and start practice and this was intended to be stopped, but since it was not possible to debar an acting or additional Judge from practising after he came back on the expiration of term, it was decided that the institution of acting and additional Judges should be done away with. There was no assumption by the Constitution makers that an acting or additional Judge would necessarily be made permanent and he would not have to go back to the Bar. On the contrary, going back to the Bar was clearly contemplated and hence Articles 198(2) and 199 were deleted. The Constitution makers also thought that it would be possible to discontinue the system of appointing acting and additional Judges altogether without any detriment to early disposal of cases, if the total number of permanent Judges was sufficiently increased.
35. But within six years of the coming into force of the Constitution it was found that the arrears in the High Courts were increasing and it was becoming difficult to bring them under control. There was Article 224 in the Constitution which provided that the Chief Justice of a High Court may at any time with the previous consent of the President request any retired Judge to sit and act as a Judge of the High Court, but this provision for recalling retired Judges to function on the Bench of a High Court for short periods was found to be neither adequate nor satisfactory and it was of no assistance in reducing the arrears of cases which were mounting-up from year to year. Parliament in its constituent capacity, therefore, decided to introduce two provisions; one for appointment of additional Judges to clear off the arrears and the other for the appointment of acting Judges in temporary vacancies and with that end in view, enacted the Constitution (Seventh Amendment) Act, 1956. This amending Act substituted the existing Article 224 by a new Article 224 which read as follows:
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 office.
(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.
The existing Article 224 was added as new Article 224A after the new Article 224. Clause (1) of Article 217 was also simultaneously amended with a view to making provision in regard to an acting or additional Judge. We have already set out the amended Clause (1) of Article 217 in an earlier part of the Judgment and we need not, therefore, reproduce it here once again.
36. The first question which arises for determination under Article 224 Clause (1) is as to when can an additional Judge be appointed by the President. This article confers power on the President to appoint an additional Judge, 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 and in that event, he can appoint an additional Judge for such period not exceeding two years as he may specify. It must appear to the President that either by reason of temporary increase in the business of the High Court or by reason of accumulation arrears of work in the High Court, it Is necessary to increase the number of the Judges of that Court for the time being. The power to appoint an additional Judge cannot therefore be exercised by the President unless there is either temporary increase in the business of the High Court or there is accumulation of arrears of work in the High Court and even when one of these two conditions exists, it is necessary that the President must be further satisfied that it is necessary to make a temporary increase in the number of Judges of that High Court, The words “for the time being” clearly indicate that the increase in the number of judges which the President may make by appointing additional Judges would be temporary with a view to dealing with the temporary increase in the business of the High Court or the arrears of work in the High Court. Article 224, Clause (1) did not contemplate that the increase in the number of Judges should be for an indefinite duration. The object clearly was that additional Judge should be appointed for a short period in order to dispose of the temporary increase in the business of the High Court and/or to clear off the arrears of pending cases. There is sufficient indication in Clause (1) of Article 224 that the appointments of additional Judges were intended to be of short duration and Parliament expected that sufficient number of additional Judges would be appointed so as to dispose of the temporary increase in the work or the arrears of pending cases within a period of two years or thereabouts, That is why Clause (1) of Article 224 provided that additional Judges may be appointed for a period not exceeding two years. The underlying idea was that there should be an adequate strength of permanent Judges in each High Court to deal with its normal institutions and so far as the temporary increase in the work or the arrears of pending cases were concerned, additional Judges appointed for a period not exceeding two years should assist in disposing of such work. This was the reason why the Law Commission in its Fourteenth Report stated in paras. 54 and 57 of Chap. 6 in Vol. 1:
54. The large increase in the volume of annual institutions which has been referred to earlier must now, we think, be taken as a permanent feature. This position accordingly necessitates a thorough revision of existing ideas regarding the number of judges required for each High Court. The strength of the High Courts has been increased from time to time. In doing this, however, the post-Constitutional developments which have thrown a much heavier burden on the High Courts have, in our view, not been adequately taken into account. To expect the existing number of judges in the various High Courts to deal efficiently with the vastly increased volume of work is, in our opinion, to ask them to attempt the impossible. As pointed out to us by a senior counsel, if there is a congestion on the roads due to an increase in traffic, the remedy is not to blame the traffic but to widen the roads.
The first essential, therefore, is to see that the strength of every High Court is maintained at a level so as to be adequate to dispose of what may be called its normal institutions. The normal strength of a High Court must be fixed on the basis of the average annual institutions of all types of proceedings in a particular High Court during the last three years. This is essential in order to prevent what may be termed the Current file of the Court falling into arrears and adding to the pile of old cases. The problem of clearing the arrears can be satisfactorily dealt with only after the normal strength of each Court has been brought up to the level required to cope with its normal institutions. We suggest that the required strength of the High Court of each State should be fixed in consultation with the Chief Justice of that State and the Chief Justice of India and the strength so fixed should be reviewed at an interval of two or three years. Such a review, will be necessary not only by reason of changing conditions but because the implementation of our recommendations made elsewhere will lead to a quicker disposal of work in the subordinate Courts which, in its turn, will result in an increase in the work of the High Courts.
37. We are of the view that the provisions of Article 224 of the Constitution should be availed of and additional judges be appointed for the specific purpose of dealing with these arrears. The number of such additional judges required for each High Court for the purpose of dealing with the arrears will have to be fixed in consultation with the Chief Justice of India tad the Chief Justice of the State High Court after taking into consideration the arrears in the particular Court, their nature and the average disposal of that Court. The number of additional judges to be fixed for this purpose should be such as to enable the arrears to be cleared within a period of two years. The additional judges so appointed should, in our view, be utilised as far as possible exclusively for the purpose of disposing of arrears and not be diverted to the disposal of current work. Pari passu with the disposal of the arrears, the permanent strength of the High Court will have to be brought up to and maintained at the required level, care being taken to see that their normal disposal keeps pace with the new institutions and that they are not allowed to develop into arrears. The appointment of additional Judges for the exclusive purpose of dealing with the arrears is in our view, called for in a large number of High Courts.
The sentence underlined by us in para 57 clearly shows that according to the Law Commission also the intendment of Clause (1) of Article 224 was that sufficient number of additional Judges would be appointed “so as to enable the arrears to be cleared off within a period of two years,” The same note was struck by P.N. Sapru when he said in the course of the Debates in Rajya Sabha during the discussion of the Constitution (Seventh Amendment) Bill; “It is necessary to have additional Judges for the disposal of arrears. These arrears, I hope, represent a temporary situation…. once these arrears have been cleared off, it will be possible for us to fix or to determine the permanent strength of our Courts with some degree of assurance.” Now it is obvious that if additional Judges were appointed according to the true intendment of Clause (1) of Article 224, they would be temporary Judges appointed for a short duration to clear off the arrears and once the arrears are cleared off, which was expected by Parliament to be achieved within not more than two years they would, on the expiration of their term, go back to the Bar or to the District Judicial Service. Their tenure being for a short period limited by the time expected to be taken in clearing off the arrears — such time, in any event, being hopefully not more than two years — they would know that, on the expiration of their term, they would have to go back. They would have no right to be appointed or even to be considered for appointment as permanent Judges, because when they accepted appointment as additional Judges under Clause (1) of Article 224, they would have known that they were appointed only as temporary Judges for a short period in order to clear off the arrears.
37. But what happened in practice was that the true intendment and purpose of Clause (1) of Article 224 was never carried into effect. The Government did not increase the strength of permanent Judges in different High Courts adequately so as to be able to cope with the normal institutions. Though the Law Commission had recommended in its Fourteenth Report that the normal strength of a High Court must be fixed on the basis of average annual institution of all types of proceedings in the High Court during the last three years, this recommendation was not heeded with the result that even the current institutions in many of the High Courts could not be disposed of by the inadequate number of permanent Judges and they started adding to the existing arrears. Of course, it was not only the Government which was responsible for not increasing adequately the strength of permanent Judges but the Chief Justices of many High Courts were also remiss in looking after the interests of their High Courts, inasmuch they too did not ask the Government for increase in the strength of permanent Judges. Wherever the fault may lie and it is not necessary for the purpose of these writ petitions to fix the blame, the consequence was that the arrears in the High Courts started growing menacingly from year to year. The requisite number, of additional Judges was also not appointed by the Government though Clause (1) of Article 224 clearly contemplated that sufficient number of additional Judges would be appointed in order to clear off the arrears within a period of about two years. The old arrears therefore continued to exist and new arrears were added out of the current file of cases which remained undisposed of by the existing strength of Judges. The strength of additional Judges was not fixed realistically and a much lesser number of additional Judges than required far the purpose of clearing off the arrears within a period of about two years were appointed in the different High Courts from time to time with the result that the arrears continued to in-crease and the need for additional Judges continued to subsist. The unfortunate consequence was that the additional Judgeship became a gateway, for entering the cadre of permanent Judges. Whenever a person was appointed as a Judge in a High Court, he would be first appointed as an additional Judge and only when a vacancy occurred in the post of a permanent Judge, he would be confirmed as a permanent Judge in that vacancy in accordance with the seniority amongst the additional Judges. The practice therefore grew up of a person toeing first appointed as an additional Judge and then being confirmed as a permanent Judge in the same High Court. The Union of India at the instance of the petitioners filed before us a statement showing that in almost all cases barring a negligible few, every person was appointed first as an additional Judge in the High Court and then confirmed as a permanent Judge in the same High Court as soon as a vacancy in the post of a permanent Judge became available to him. The entire object and purpose of the introduction of Clause (1) of Article 224 was perverted and additional Judges were appointed under this Article not as temporary Judges for a short period who would go back on the expiration of their term as soon as the arrears are cleared off, but as Judges whose tenure, though limited to a period not exceeding two years at the time of each appointment as an additional Judge, would be renewed from time to time until a berth was found for them in the cadre of permanent Judges. By and large, every person entered the High Court judiciary as an additional Judge in the clear expectation that as soon as a vacancy in the post of a permanent Judge became available to him in the High Court he would be confirmed as a permanent Judge and if no such vacancy became available to him until the expiration of his term of office, he would be re-appointed as an additional Judge for a further term in the same High Court, Therefore, far from being aware that on the expiration of their term, they would have to go back because they were appointed only as temporary Judges for a short period in order to clear off the arrears — which would have been the position if Clause (1) of Article 224 had been implemented according to its true intendment and purpose — the additional Judges entered the High Court judiciary with a legitimate expectation that they would not have to go back on the expiration of their term but they would be either reappointed as additional Judges for a further term or if in the meanwhile, a vacancy in the post of a permanent Judge became available, they would be confirmed as permanent Judges. This expectation which was generated in the minds of additional Judges by reason of the peculiar manner in which Clause (1) of Article 224 was operated, cannot now be ignored by the Government and the Government cannot be permitted to say that when the term of an additional Judge expires, the Government can drop him at its sweet will. By reason of the expectation raised in his mind through a practice followed for almost over a quarter of a century, an additional Judge is entitled to be considered for appointment as an additional Judge for a further term on the expiration of his original term and if in the meanwhile, a vacancy in the post of a permanent Judge becomes available to him on the basis of seniority amongst additional Judges, he has a right to be considered for appointment as a permanent Judge in his high Court.
38. It is clear on a plain reading of Article 217, Clause (1) that when an additional Judge is to be appointed, the procedure set out in that article is to be followed. Clause (1) of Article 217 provides that “Every Judge” of a High Court shall be appointed after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. The expression “Every Judge” must on a plain natural construction include not only a permanent Judge but also an additional Judge. It is significant to note that whenever the Constitution Makers intended to make a reference to a permanent Judge, they did so in clear and explicit term as in Clause (2) of Article 224. Moreover, there is inherent evidence in Article 217 Clause (1) itself which shows that the expression “Every Judge” is intended to fake in an additional Judge as well Clause (1) of Article 217 says that “Every Judge … shall hold office in case of an additional Judge… as provided in Article 224 which clearly suggest that the case of an additional Judge is covered by the opening words “Every Judge”. We may also consider what would be the consequence of construing the word “Every Judge” as meaning only a permanent Judge. On that construction, Clause (1) of Article 217 will not apply in relation to appointment of an additional Judge and it would be open to the Central Government under Article 224. Clause (1) to appoint an additional Judge without consulting any of the constitutional functionary specified in Clause (1) of Article 217. This could never have been intended by the Constitution Makers, who made such elaborate provisions in the Constitution for safeguarding the independence of the judiciary. We must therefore, hold that no additional Judge can be appointed without complying with the requirement of Clause (1) of Article 217.
39. Now. when the term of an additional Judge expires he ceases to be a Judge and therefore, if he is to continue as a Judge, he must be either reappointed as an additional Judge or appointed as a permanent Judge. In either case, Clause (1) of Article 217 would operate and no reappointment as an additional Judge or appointment as a permanent Judge can be made without going through the procedure set out in Article 217 Clause (1). Of course, an additional Judge has a right to be considered for such reappointment or appointment, as the case may be, and the Central Government cannot be heard to say that the additional Judge need not be considered. The additional Judge cannot just be dropped without consideration. The name of the additional Judge would have to go through the procedure of Clause (1) Article 217 and after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, the Central Government would have to decide whether or not to reappoint him as an additional Judge or to appoint him as a permanent Judge. If the procedure for appointment of a Judge followed as a result of a practice memorandum issued by the Central Government is that the proposal for appointment of a Judge may ordinarily originate from the Chief Justice of the High Court and may then be sent to the Governor of the State and thereafter to the Chief Justice of India through the Justice Ministry for their respective opinions before a decision can be taken by the Central Government whether or not to appoint the person proposed, the name of the additional Judge must be sent-up by the Chief Justice of the High Court with his recommendation whether he should be reappointed as an additional Judge or appointed as a permanent Judge or not and it must go up to the Central Government with the opinions of the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, so that the Central Government may, after considering such opinions, make-up its mind on the question of reappointment or appointment as the case may be. But this is the only right possessed by the Additional Judge. The additional Judge is not entitled to contend that he must automatically and without any further consideration be appointed as an additional Judge for a further term or as a permanent Judge. He has to go through the process of Clause (1) of Article 217 and to concede to him the right to be appointed either as an additional Judge for a further term or as a permanent Judge would be to fly in the face of Article 217 Clause (1). If the additional Judge is entitled to be appointed without anything more, why should the process of consultation be gone through in regard to his appointment? Would consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court not be reduced to a farce? It would be a mockery of consultation with such high constitutional dignitaries. There can, therefore, be no doubt that an additional Judge is not entitled as a matter of right to be appointed as an additional Judge for a further term on the expiration of his original term or as a permanent Judge. The only right he has to be considered for such appointment and this right also belongs to him not because Clause (1) of Article 224 confers such right upon him, but because of the peculiar manner in which Clause (1) of Article 224 has been operated all these years.
40. But the question then arises what are the factors which can legitimately be taken into account by the Central Government in deciding whether or not to reappoint an additional Judge for a further term or to appoint him as a permanent Judge. The argument of the petitioners was that an additional Judge is not on probation. He is as much a Judge as a permanent Judge with the same jurisdiction and the same powers and to treat him as if he were on probation would not only detract from his status and dignity but also affect his independence by making his continuance as a Judge dependent on the good opinion of the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India. We find it difficult to accept this argument in the face of the clear and unambiguous language of Clause (1) of Article 217. There are no limitations in the language of Clause (1) of Article 217 as to what factors shall be considered and what factors shall not be, but having regard to the object and purpose of that provision namely, appointment of a High Court Judge, it is obvious that fitness and suitability, physical, intellectual and moral, would be the governing considerations to be taken into account in deciding the question of appointment. Now, when, on the expiration of the term of an additional Judge, the Central Government is again called upon to consider whether or not he should be re-appointed as an additional Judge or appointed as a permanent Judge, the Central Government would have to apply its mind to the question whether such additional Judge possesses the requisite fitness and suitability for being reappointed or appointed as the case may be. Public interest requires that only such person should be appointed as a Judge who is physically, intellectually and morally fit and suitable to be appointed as a Judge and it would be contrary to public weal to appoint a person, who does not possess the requisite fitness and suitability. The Central Government would therefore be under a constitutional obligation to consider whether the additional Judge, whose term has expired, is fit and suitable to be reappointed as an additional Judge or appointed as a permanent Judge. How can Clause (1) of Article 217 or Article 224 be so interpreted as to require the Central Government to reappoint an additional Judge for a further term or to appoint him as permanent Judge, even if at the time of such reappointment or appointment as the case may be, he is physically, intellectually or morally unfit or unsuitable to be appointed as a Judge. Of course, at the time when the question of reappointment of an additional Judge for a further term or his appointment as a permanent Judge comes up before the Central Government for consideration, the additional Judge would have two weighty circumstances in his favour; one, that he has experience as a Judge for one term and the other, that it would not be desirable to send an additional Judge back to the Bar. But even with these weighty circumstances in his favour, he would have to satisfy the test of fitness and suitability, physical, intellectual and moral, before the Central Government can, consistently with its constitutional obligation and in public interest, decide to reappoint him as an additional Judge or appoint him as a permanent Judge. It is true that the fitness and suitability of, the additional Judge must have been considered by the Central Government at the time of his original appointment, out when the question again comes up for consideration on the expiration of his term, the Central Government has to consider afresh, in the light of the material then available, as to whether he possesses the requisite fitness and suitability for being appointed as a Judge. It would not be right to say that merely because the fitness and suitability of the additional Judge is required to be considered again for the purpose of deciding whether he should be reappointed for a further term or appointed as a permanent Judge, it would amount to treating him as if he were on probation. An additional Judge is certainly not on probation in the sense that his service cannot be terminated before the expiration of his term, unlike a probationer who can be Bent out any time during the period of probation. It would also not be open to the Chief Justice of the High Court or the Governor of the State or the Chief Justice of India to sit in judgment over the quality of the work turned out by the additional Judge during his term, because that would be essentially an appellate function which cam be discharged only by the court entitled to hear appeals from the decisions of the additional Judge. But every other consideration which bears on the physical, intellectual and moral fitness and suitability of the additional Judge can and must be considered and if the Central Government finds, after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India that the additional Judge is not fit and suitable for being appointed as a Judge, the Central Government may decide not to appoint ham as an additional Judge for a further term or as a permanent Judge. So long as the case of the additional Judge is considered by the Central Government for reappointment or appointment as the case may be, the decision of the Central Government cannot be questioned except on the ground that it was reached without full and effective consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India or that was based on irrelevant considerations.
41. There was also one other argument advanced by the learned Attorney General and it was that where an additional Judge is not appointed for a further term or as a permanent Judge, he cannot challenge the decision of the Central Government not to appoint him, because Clause (1) of Article 217 prescribes the procedure to be followed only where an appointment is made and it has no application where an appointment is not made. This argument is, in our opinion, without force and must be rejected. An additional Judge, as we have pointed out, has a right to be considered for appointment as an additional Judge for a further term or in case there is a vacancy in a permanent post, then for appointment as a permanent Judge, and he must therefore, be considered by the Government for such re-appointment or appointment as the case may be, and a decision must be taken in regard to him after consultation with Chief Justice of the High Court, the Governor of the State and the Chief Justice of India, and if it is found that there was no consultation with any of these three constitutional functionaries before the decision was taken by the Central Government not to appoint him or the decision of the Central Government is based on irrelevant grounds, it would not be, consideration by the Central Government as required by Clause (1) of Article 217 and he would, therefore, be entitled to challenge the decision of the Central Government which is based on what may be called ‘non-consideration in law’ and to require the Central Government to reconsider his case in accordance with Clause (1) of Article 217. This consequence would follow only because an Additional Judge has a right to be considered for appointment as an additional Judge for a further term or as a permanent Judge. No person, who is proposed for initial appointment as a Judge would be entitled to complain against the decision of the Central Government not to appoint him, because he would have no right to be considered for appointment as a Judge.
42. We must also deal with the argument of the petitioners that so long as there is a post of a permanent Judge vacant, no appointment of an additional Judge can be made under Clause (1) of Article 224. It is clear from the language of Clause (1) of Article 224 that it is only where permanent Judges of a High Court are unable to cope with the current institutions and the increased business or the arrears of pending cases and it is found necessary for the purpose of disposing of the increased business or the arrears of pending cases to increase the strength of the Judges of the High Court for the time being that additional Judges can be appointed. Clause (1) of Article 224 contemplates appointment of additional Judges to augment the strength of the existing Judges. It must therefore follow logically that there must be full strength of existing Judges before additional Judges can be appointed and so long as any post of existing Judges is not filled up, there can be no question of appointing additional Judges to augment their strength. When there is a vacancy in the post of a permanent Judge, it must first be filled up before any additional Judge can be appointed under Clause (1) of Article 224. It is therefore, necessary that the Central Government must periodically review the strength of permanent Judges in each High Court, so that there is a proper and adequate strength for the purpose of dealing with the normal institutions. Since there are large arrears pending almost in every High Court and it is not humanly possible to dispose of these arrears within a measurable distance of time even by appointment of additional Judges, we think it necessary that instead of appointing additional Judges for the purpose of disposing of the arrears, it would be desirable to increase the strength of permanent Judges because the arrears have come to stay and we do not think it is possible to wipe them out for a long period of time. We are glad that towards the close of the arguments Mr. Mridul submitted to us a statement on behalf of the Central Government assuring us that:
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.
We hope and trust that the Central Government will soon take the necessary steps to increase realistically the strength of permanent Judges in each High Court.
43. One last argument now remains, when an additional Judge is appointed, what should be the term for which his appointment is made. Clause (1) of Article 224 provides that an additional Judge may be appointed for a period not exceeding two years. That is the outside limit prescribed by Article 224 Clause (1) and it was therefore, contended by the learned Attorney General that appointment of an additional Judge can be made for any term, howsoever short it be, so long as it does not exceed two years. The appointments of O.N. Vohra, S.N. Kumar and S.B. Wad for three months and the appointments of some other additional Judges for six months were thus defended by the learned Attorney General as being within the scope and ambit of Clause (1) of Article 224. We cannot accept this argument. It is no doubt true that Clause (1) of (the) Article fixes the outer limit for the term for which an additional Judge may be appointed, but that has been done because there may be cases where the temporary increase in the business or the arrears of pending cases are so small that it may be possible to dispose them of by appointing additional Judges for a term less than two years. If the temporary increase in the business or the arrears of pending cases can be disposed of within a shorter time, why should additional Judges be appointed for the lull period of two years. That is why Parliament provided that an additional Judge may be appointed for a term not exceeding two years. But when arrears of pending cases are so large that it would not be possible to dispose them of even within a period of ten years — and when we say ten years, we are making a very conservative estimate — what justification there can be for appointing additional Judges for a period of less than two years. That would be plainly outside the scope of the power conferred under Clause (1) of Article 224. When the arrears of pending cases are such that they cannot possibly be disposed of within a period of less than two years, additional Judges must be appointed for a term of two years and no less. Mr. Mridul informed us towards the close of the arguments that the Union Government had decided that ordinarily further appointment of additional Judge will not be made for a period of less than one year, but we cannot regard this statement as being fully in compliance with the constitutional requirement. The term for which an additional Judge is appointed must not be less than two years, unless the temporary increase in business or the arrears of pending cases are so small that they can reasonably be disposed of within a shorter period, which, of course, today is only an idle dream in most of the High Courts. We may also point out that an additional Judge cannot be appointed for a period of three months or six months in order to enable the Chief Justice of India or the Central Government to consider whether the additional Judge should be appointed for a further term or as a permanent Judge. That is a matter on which the Chief Justice of India must come to his opinion well in tune and the Government of India must also reach its decision sufficiently in advance so that the additional Judge would know quite some-time before his term is due to expire whether he is going to be appointed for a farther term or is going to be discontinued. There is no power in the Central Government to appoint an additional Judge for a short term in order to enable either the Chief Justice of India or the Central Government to make enquiries with a view to satisfying itself whether the additional Judge s fit and suitable for being appointed as an additional Judge or as a permanent Judge. We are, therefore, of the view that the Chief Justice of India acted under a misconception of the true constitutional position when he recommended the appointment of O.N. Vohra, S.N. Kumar and S.B. Wad for a period of six months and the Central Government was also in error in appointing them only for a period of three months.
Circular Letter of the Law Minister:
44. We must then turn to consider the question whether the circular letter issued by the Law Minister was unconstitutional and void. Now obviously the circular letter could be assailed as unconstitutional and void only if it could be shown to be in violation of some constitutional or legal provision. There was admittedly no provision of law, at least none could be pointed out by the learned Counsel appearing on behalf of the petitioners, which could be said to have infringed by the issuance of the circular letter, but the argument was that the circular letter offended against the provisions of Clause (1) of Article 217 and Clause (1) of Article 222. We shall presently examine this argument but before we do so, it would be worthwhile first to analyse the terms of the circular letter in order to determine what is it that the circular letter seeks to achieve which is constitutionally objectionable or impermissible. The learned Counsel appearing on behalf of the petitioners contended that the circular letter must be construed objectively with reference to the language used in that letter and no extrinsic aid, such as a statement subsequently made by the Law Minister in the Lok Sabha, should be invoked for the purpose of arriving at its true interpretation. The decision of this Court in Cornmr. of Police v. Gordhandas Bhanji, was referred to in this connection and strong reliance was placed on the following observations made by this Court, namely, “Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself,” This principle of interpretation is indisputably a valid principle and no exception can he taken against it, but we do not think It can have any application in the present case, because the circular letter addressed by the Law Minister is not in the nature of a public order made by a public authority. The Law Minister is undoubtedly a member of the Cabinet and it is reasonable to assume that in issuing the circular letter he was acting on behalf of the Central Government but the circular letter does not appear to have been issued by the Law Minister in the exercise of any constitutional or legal power. The circular letter has no constitutional or legal sanction behind it and non-compliance with the request contained in it would not proprio vigore entail any adverse consequence to the additional Judge or to the person recommended for initial appointment, for not complying with such request. It may be that because an additional Judge does not give his consent to be appointed as a permanent Judge in another High Court, he may not be appointed as a permanent Judge in his own High Court and may be discontinued as an additional Judge on the expiration of his term, though this is not within the intendment of the circular letter and is clearly impermissible but in that event it would be his non-appointment as a permanent Judge or discontinuance as an additional Judge which would, if at all, give him a cause of action and not the circular letter asking for such consent. The circular letter is a document without any legal force and does not by itself of its own force, create or alter any legal relationship or arrangement or produce any legal consequence or effect. It is no more than a letter addressed to the Chief Minister of each State asking him to obtain the consent of the additional Judges as also of those recommended or to be recommended for initial appointment, for being appointed as Judges in a High Court outside the State. It would therefore seem that the principle of interpretation enunciated by this Court in Gordhandas Bhanji’s case (supra) cannot apply in the construction of the circular letter. We must construe the circular letter from a commonsense point of view having regard to the clarification, if any, given by the author of the circular letter, namely, the Law Minister.
45. The circular letter has been reproduced by us in extenso in an earlier part of the judgment while stating the facts giving rise to the writ petitions. The first paragraph of the circular letter begins by saying that it has repeatedly been suggested to the Government over the years “by several bodies and forums including the States Re-organization 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.” The learned Counsel appearing on behalf of the petitioners criticized this statement by observing that since the names of till “several bodies and formus” referred to in this statement were not specifically mentioned, it was not possible to deal with their credentials or to examine the validity of the reasons on which their conclusion was based. But Mr. Mridul appearing on behalf of the Law Minister convincingly dealt with this criticism and referred in detail to various bodies and forums which had from time to time expressed the view that one third of the Judges of every High Court should as far as possible be from outside this State in which that High Court is situated. The earliest point of time when this view was expressed by a high powered body was in the year 1951, when the States Re-organisation Commission in its report recommended that “at least one-third of the number of Judges in the High Court of a State should consist of persons who are recruited from outside that State” and this recommendation was guided by the consideration that “the principal organs of State should be so constituted as to inspire confidence and to help in arresting parochial trends”. Then the Law Commission in its Fourteenth Report presented in 1958 expressed the same view: “The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these States. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one third of the High Court Judges would be persons drawn from outside the State will be fulfilled.” There was also a discussion on this proposal, namely, whether one third of the number of Judges in each High Court should be from outside the State, at the Chief Justices Conference held in March, 1965 and out of 15 Chief Justices of High Courts who attended the Conference, 8 were against the proposal, 6 were in favour and the remaining Chief Justice also supported the proposal, but with this qualification that the one-third number of Judges should be worked out by initial appointment. Chief Justice Subba Rao also in his letter dated 6th Oct., 1966, expressed the view that it would be better to bring Judges from outside at the time of initial appointment. Then came the Report of the Study Team of the Administrative Reforms Commission submitted in 1967 and this Report also examined the question of appointment of Judges in High Courts and came to the view that the recommendation of the States Reorganisation Commission should be implemented so that as far as possible one-third of the number of Judges in a High Court are from outside. The Study Team observed that a serious effort to implement this recommendation “will make its Own contribution to efficiency, independence and national integration.” The same question once again came Up for consideration, before the Law Commission in the year 1978 and the Law Commission sent out a questionnaire to various individuals and associations for the purpose of eliciting their views inter alia in regard to the suggestion that there should be a convention according to which one-third of the judges in each High Court should be from, another State. Mr. S.V. Gupte, who was then Attorney General of India and who is known for bold and courageous expression, of his views, stated in answer to the questionnaire that he was wholly in favour; of having one-third of the number of Judges in each High Court from outside the State “as that alone may perhaps secure some kind of freedom from bias on grounds of caste and class consideration or any close association with local people.” The Bar Council’ of India also in its. reply to the Questionnaire supported the proposal of one-third Judges in a High Court being from outside the State. It is interesting to note — and this completely establishes the bona fides of the Law Minister, in issuing the circular letter–that even as far back as 26th Feb., 1979, when the political party to which the Law Minister belongs was not in power, the Law Minister stated clearly and unequivocally that he agreed with the view expressed by the Law Commission that one third of the Judges in each High Court must be from outside the State, because this would achieve better national integration in the field of judiciary. Whilst expressing this view, it is significant to note that the Law Minister made it clear that he would not support transfer of a High Court Judge “if it is based on extraneous considerations”. Then followed the Eightieth Report of the Law Commission presided over by Mr. Justice H.R. Khanna. This Report was submitted to the Government of India in Aug., 1973, and in this Report, the Law Commission expressed its agreement with the recommendation made by the earlier Law Commission in its Fourteenth Report, namely, that “there should be a convention according to which one third of the Judges in each High Court should be from another State” and added that this should normally be done through the process of initial appointments and not by transfers. The Law Commission gave the following reasons for taking this view:
Evolving such a convention would in our opinion, not only help in the process of national integration but would also improve the functioning of various High Courts. It would secure on the Bench of each High Court the presence of a number of Judges who would not be swayed by local considerations or affected by issues which may rouse local passions and emotions. As observed by us in one of our earlier Reports, one of the essential things for the due administration of justice is not only the capacity of the Judges to bring a dispassionate approach to cases handled by them, but also to inspire a feeling in all concerned that dispassionate approach would underlie their decision, quite often, cases which arouse strong emotional sentiments and regional feelings come up before courts of law. To handle such cases, we need Judges who not only remain unaffected by local sentiments and regional feelings, but also appear to be so. None would be better suited for this purpose than Judges hailing from other States. It is a common feeling amongst old lawyers that apart from cases with political overtones, the English Judges showed a sense of great fairness and brought a dispassionate approach in the disposal of judicial cases handled by them. We in India are in the fortunate position of having a vast country. There can, therefore, be no difficulty in having a certain percentage of Judges who hail from other States. The advantages gained by having persons from other States as Judges would be much greater compared with any disadvantage which might result therefrom.
This question was also discussed at the meetings of the Consultative Committee of Parliament for the Law Ministry held on 7th June, 1980, 24th July 1980 and 17th December, 1980, and the unanimous view taken by the members of the Consultative Committee belonging to different political parties was that at-least one-third of the Judges in a High Court should be from outside the State. The Chief Justice of India also in a communication addressed to the Law Minister in March, 1978, expressed his view favouring outside appointments to High Courts and in a letter addressed by him to the Law Minister on 18th March, 1981, he opined that “it is high time that atleast a few of the new appointments to every High Court were made from outside the State.” He also observed in a communication addressed in April, 1981, that “he had publicly proclaimed his opinion more than once that at least one-third of the new appointments should be from amongst persons from outside the particular States.” The National Seminar on Judicial Appointments and Transfers convened by the Bar Council of India in Ahmedabad from 17th to 19th October, 1980 also yielded the same consensus view, namely:
The ideal of having one-third of High Court Judges from outside the State helps promotion of national integration and the preservation of a unifiled judicial system. However, it is desirable that this composition of the High Court should be accomplished by way of initial appointments rather than by transfers. Furthermore, in implementation of this formula care must be taken to preserve the legitimate representation of Steles and to maintain the sanctioned strength to each State.
It will thus be seen that, barring perhaps the Associations of Bombay Lawyers, all high powered bodies, forums and associations, which have anything to do with judicial system, have consistently over the years taken the view that one-third of the number of Judges in each High Court should be from outside the State. The unanimity of view has been so complete and overwhelming that it is impossible to contend that the policy of having one-third of the Judges in every High Court from outside the State, which the Law Minister is trying to implement by issuing the circular letter, is ill-conceived or mala fide or subversive of the independence of the judiciary. So long as the policy is evolved by the Government; after consultation with the Chief Justice of India and it is not otherwise unconstitutional, the Court cannot pronounce upon the wisdom of the policy or strike it down because it does not appeal to the court. Here the policy of having one-third of the number of Judges in each High Court from outside the State has been adopted after consultation with the Chief Justice of India and, in fact, it has his complete approval and the Law Minister did not therefore act unconstitutionally or illegally in relying upon this policy in the first paragraph of the circular letter.
46. The circular letter after referring to the suggestion made by several bodies and forums that one-third of the Judges of the High Court should, as far as possible, be from outside the State, proceeded to add “Somehow no start could be made in the past in this direction.” The learned Counsel appearing on behalf of the petitioners assailed the correctness of this statement and contended that an attempt was made during the emergency to transfer permanent Judges of one High Court to another and the transfers were sought to be defended by the Government of India on the same plea of national integration and removal of harrow parochial tendencies and therefore it was hot correct on the part of the Law Minister to state that no start could be made in the past for implementing the policy of having one-third Judges of the High Court from outside the State, Now it is difficult to appreciate how this statement in the circular letter could be branded as incorrect for the reason that the transfers effected during the emergency were sought to be defended on the plea of national integration and removal of narrow parochial tendencies. In the first place, what the circular letter seeks to do is to obtain the consent of the additional Judges, not for transfer to some other High Court, but for appointment as permanent Judges in another High Court, whereas what took place during the emergency were transfers of High Court Judges from one High Court to another. Secondly, it is true that the transfers of High Court Judges made during the emergency were sought to be defended by the Government of India on the plea of national integration and removal of narrow parochial tendencies, but this defence was found by the Court in Union of India v. Sankalchand Sheth to be false, Chandrachud, J., as he then was, observed in his judgment in that case: “I would only like to add that the record of this case does not bear out the claim that any one of the 16 High Court Judges was transferred in order to further the cause of national integration. Far from it.” What was held by the Court was that the transfers of High Court Judges during the emergency were made not for the purpose of furthering the cause of national integration but by way of punishment. The Law Minister was therefore right in stating in the first para of the circular letter that no start has been made in the past in the direction of having one-third Judges in a High Court from outside the State and that is why he was taking the initiative in the matter.
47. Coming to the merits of the challenge against the validity of the circular letter, the principal contention advanced on behalf of the petitioners was that the circular letter required the additional Judges as also those whose names were recommended or might in future be recommended for initial appointment, to give their consent for being appointed as Judges outside the State and obtaining of such consent in advance would reduce the consultation with the Chief Justice of India, the Chief Justice of the High Court in which the additional Judge or the prospective Judge is to be appointed and the Governor of the State illusory and an empty formality and this would be violative of Article 217 Clause (1) which provides that the appointment of a Judge of a High Court can be made only after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India. This contention is also, in our opinion, without force and must be rejected. It is clear from the language of Clause (1) of Article 217 that the appointment of a Judge of a High Court can be made by the President only after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India and, according to the interpretation placed by us, consultation within the meaning of this Article means full and effective consultations with each of the three constitutional functionaries after placing all relevant material before them. Now, if a person, who is an additional Judge in the High Court in one State or who is practising as a lawyer in that State is to be appointed as a Judge in another State, then obviously his willingness to be so appointed would be a highly relevant factor and that would have to be ascertained and placed before the three constitutional functionaries who are required to be consulted before an appointment can be made. It is obvious that the President cannot appoint a person to be a Judge of a High Court, without first ascertaining his willingness to be appointed as a Judge in that High Court and some one has to make an inquiry in that behalf in order to ascertain his willingness, It is only if the person concerned is willing to be appointed as a Judge in that High Court that the question would arise of processing his name and consulting the three constitutional functionaries in regard to the appointment of such person This inquiry has to be made before the process of consultation can start and the Law Minister therefore by addressing the circular letter requested the Chief Minister of each State to make this inquiry. It is true that Law Minister did not state in so many terms in the circular letter that the Chief Minister may make this inquiry through the Chief Justice of the High Court but that was clearly implicit in the circular letter, because a copy of the circular letter was also sent to the Chief Justice of each High Court with the endorsement “for necessary action” and moreover it must be presumed that the necessary inquiry would be made by the Chief Minister only through the Chief Justice of the High Court. The Chief Minister would not be expected to contact directly the additional Judges or the persons recommended for initial appointment, for the purpose of ascertaining whether they are willing to be appointed as Judges in any other High Court. Since the Chief Justice of the High Court is the head of the judiciary in the State, the Chief Minister would invariably route his inquiry through the Chief Justice of the High Court and request the Chief Justice of the High Court to ascertain whether any of the additional Judges or persons recommended for initial appointment are willing to be appointed to a High Court outside the State. This inquiry could have been made by the Law Minister by writing directly to the Chief Justice of each High Court but, instead of doing so, the Law Minister chose to address his inquiry to the Chief Minister of each State, presumably because he thought that it would be more appropriate for him to make this inquiry through the Chief Minister of the State rather than by direct communication with the Chief Justice of the High Court. The Law Minister had to make this inquiry because without information as to whether an additional Judge or a person recommended for initial appointment was willing to be appointed as a Judge in another High Court, his name could not be processed for appointment as a Judge in that High Court This was the first step required to be taken after the willingness of the additional Judge or person recommended for Initial appointment, to be appointed as a Judge in another High Court was ascertained that the Law Minister could place the proposal for appointment of such person as a Judge for the consideration of the Chief Justice of that High Court, the Governor of the State in which that High Court is situated and the Chief Justice of India. It would then be for the Chief Justice of that High Court to consider whether the person proposed for appointment is fit to ha appointed in his High Court and, whether he would recommend him for such appointment. On this point, how ever, a serious objection was raised on behalf of the petitioners and a question was posed as to how the Chief Justice of a High Court can make any recommendation in regard to a person proposed to be appointed as a Judge in his High Court unless he knows such person and has seen his work either at the Bar or in the High Court or district court and is therefore in a position to assess his suitability for being appointed as a Judge. The argument was that the Chief Justice of the High Court in which the appointment is proposed to be made has a constitutional duty to give his opinion in regard to the suitability of the person proposed to be appointed and suitability would naturally include competence, character and integrity and how can the Chief Justice give an honest opinion in regard to the suitability of such person when he does not know him at all and has not even had an opportunity of seeing his work. We do not think this argument is well founded; the difficulty pointed out on behalf of the petitioners is more imaginary than real. The Chief Justice of the High Court where the appointment is proposed to be made need not blindly and unquestioningly accept the proposal made by the Law Minister, The Chief Justice of the High Court can make his own inquiries in regard to the suitability of the person proposed for appointment either through the Chief Justice of the High Court where such person is working as an Additional Judge or District Judge or practising as a lawyer or through other sources such as the Advocate General of that State, The Chief Justice of the High Court can also enquire from the Governor of the State where the person proposed to be appointed is working as an additional Judge or district Judge or practising as a lawyer and find out what are his antecedents and whether he possesses character and integrity. The social philosophy of the person proposed to be appointed as also his attitudes and habits of mind can also be ascertained by the Chief Justice of the such Court by making inquiries from the Chief Justice of the High Court where such person is working as an additional Judge or district Judge or practising as a lawyer as also from the Governor of that Stale and diverse other sources. It is not at all difficult for the Chief Justice of the High Court where an appointment is proposed to be made to gather the requisite information about the person proposed to be appointed so as to enable him to make up his mind in regard to the suitability of such person for appointment as a Judge. May we ask what happens when a person is recommended for appointment as a Judge in a High Court by the Chief Justice of India? There have been quite a number of instances where this has happened. There have been cases where the Chief Justice of India has recommended members of the Supreme Court Bar for appointment as Judges in different High Courts and equally there have been cases where members of the Income-tax Tribunal as also persona working in the legal department of the Government of India have been recommended by the Chief Justice of India for appointment as High Court Judges. In such cases, the Chief Justice of the High Court where the appointment is proposed to be made, would naturally gather the requisite information about the person proposed to be appointed from the Chief Justice of India and other sources available to him and decide whether such person is suitable for being appointed as a Judge in his High Court, He may agree with the recommendation of the Chief Justice of India or he may disagree with it. In fact, there have been cases, though very few, where the Chief Justice of the High Court has declined to accept the person proposed by the Chief Justice of India for appointment as a Judge in his High Court. Merely because a recommendation emanates from the Chief Justice of India, it does not mean that consultation with the Chief Justice of the High Court, where the person concerned is. proposed to be appointed, would be reduced to a. mockery. The proposal for appointment of a person as a Judge may be initiated by the Central Government or by any of the three constitutional functionaries required to be consulted and from whomsoever the proposal emanates, the other constitutional functionaries are required to be consulted in regard to it on the basis of full and identical material When the Chief Justice of the High Court is informed that a particular person is willing to be appointed as a Judge in his High Court and the proposal to appoint him as a Judge may therefore be considered, the Chief Justice of the High Court can ask the Central Government or the Chief Justice of India, whosoever has made the proposal, to place before him all the relevant material in regard to the person proposed to be appointed and also gather the necessary material from the Chief Justice of the other High Court as also from other sources available to him and then decide whether to recommend such person or not So also the Governor of the State where the appointment’s proposed to be made, can make the necessary inquiries and after considering all relevant material decide what attitude it should adopt in regard to the proposed appointment. The Chief Justice of India also would have a very important role to play in the process of consultation. Before giving his opinion in regard to the proposed appointment, the Chief Justice of India may enquire directly from the person proposed to be appointed whether he is really willing to be appointed as a Judge in another High Court and whether the consent given by him is genuine and free. The person proposed to be appointed may also point out to the Chief Justice of India his problems and difficulties in accepting appointment in the other High Court and the Chief Justice of India will consider all this material before he gives his opinion to the President. The Chief Justice of India will also have to consider whether the proposed appointment is bona fide and in public interest or it is being made only with a view to favouring the person concerned so that by appointment in another High Court, he may get some benefit which he would not get in the High Court of his own State. The Chief Justice of India may in such a case refuse to agree to the proposed appointment, even though the person proposed to be appointed has consented to it. These and many other relevant considerations will have to be taken into account by the Chief Justice of India before he gives his opinion to the President in regard to the proposed appointment. We therefore fail to see how the obtaining of the consent of the person proposed for appointment, in advance for being appointed as a Judge in another High Court can possibly have the effect of reducing consultation with the Chief Justice of India to a mockery or making it ineffective so as to be violative of Clause (1) of Article 217.
48. The next contention urged on behalf of the petitioners was that the circular letter held out a veiled threat to the additional Judges that if they do not consent to their appointment as Judges in a High Court other than their own, they may not be appointed as permanent Judges at all and may be dropped on the expiration of their term of office. The petitioners relied on the use of the word “obtain” in the circular letter and submitted that the use of this word conveyed a sense of compelled obedience with an implied threat that failure to give consent may entail adverse consequences. Whether such adverse consequences actually flowed or not was not material, contended the petitioners, but what was disturbing was that there was an implied threat of such adverse consequences and that was subversive of the independence of the judiciary. Moreover, consent obtained under such threat of adverse consequences could not be regarded as valid consent in law because consent to be valid must be free and must not be induced by threat, coercion or duress. Now we fail to see how from the mere use of the word ‘obtain’ in the circular letter, this entire edifice of an argument that there was an implied threat to the additional Judges that if they do not give their consent for being appointed as Judges in another High Court, they would be visited with adverse consequences, can be built up. The word “obtain is a transitive verb and it is obvious that when the Chief Minister of each State was asked by the Law Minister by issuing the circular letter to obtain the consent of the additional Judges for being appointed as permanent Judges in another High Court, what was meant was that the Chief Minister should obtain the consent of each additional Judge if he was willing to give such consent. It is clear as a matter of plain grammar that one person can obtain something from another provided that other is willing to give it. The use of the word obtain cannot possibly be construed to mean that the person from whom the consent is to be obtained must be coerced into giving it. To read the word ‘obtain’ in the circular letter as meaning that the Chief Minister was expected to coerce the additional Judges into giving their consent or as conveying an implied threat to the additional Judges that if they do not give their consent they might be dropped as additional Judges on the expiration of their term, would, in our opinion, be nothing short of torturing out of the language used in the circular letter, a meaning which the language does not bear and which could not possibly have been intended by the Law Minister.
49. The petitioners also sought to bolster up their case that the circular letter held out a veiled threat to the additional Judges by relying on the statement contained in the circular letter that the giving of consent by additional Judges would not necessarily involve any commitment on the part of the Central Government to appoint them as permanent Judges. But we do not see how this statement can be regarded as a veiled threat that if an additional Judge does not give his consent for being appointed as a Judge in another High Court, he may not be appointed as a permanent Judge at all and may be discontinued on the expiration of his term of office. We do not think it is possible to read any such sinister implication in this statement contained in the circular letter, This statement merely reiterated the legal position, too well-settled to admit of any doubt or debate, that merely because a person has given his consent to be appointed as a Judge in a High Court, it does not mean that he would necessarily be appointed as a Judge. He may not be appointed at all, if after consultation with the three constitutional functionaries as provided in Article 217 Clause (1), it is decided not to appoint him. Even if it is decided to appoint him, he may not be appointed as a Judge in the High Court of his choice because the Chief Justice of that High Court or the Governor of that State or the Chief Justice of India may object to his appointment in that High Court. He must not therefore remain under the impression that merely because he has given his consent for being appointed as a Judge outside his State and expressed his preference as regards the High Courts where he would like to be appointed, he would necessarily be appointed as a Judge and in the High Court of his choice. Far from this being a threat to the additional Judges, it was a dear intimation to them that they should not be under any wrong impression that giving of consent would ensure them appointment as a permanent Judge and in the High Court of their choice. Whether to appoint an additional Judge as a permanent Judge or to continue him as an additional Judge for a further term or to discontinue him on the expiration of his term would be decided in accordance with the procedure laid down in Clause (1) of Article 217 and giving of consent would not be a factor tilting the balance in favour of the additional Judge giving such consent. We are also not impressed by the argument urged on behalf of the petitioners that the omission to state in the circular letter that if an additional Judge does not give his consent to be appointed in any other High Court, it would not be held against him in considering his appointment as a permanent Judge, conveyed an implied threat that failure to give such consent would be held against the additional judge and he might be discontinued as an additional Judge on that account. It is difficult to spell out any such implied threat on a plain reading of the circular letter. On the contrary it is significant to note that the circular letter did not state, as it well might have, if such was the intention of the Law Minister, that if consent is not given by an additional Judge for being appointed as a permanent Judge in another High Court, he would run the risk of being discontinued as an additional Judge on the expiration of his term. It would be quite open to an additional Judge under the circular letter to say that he is not willing to be appointed in any other High Court except Ms own and even so, when his term as an additional Judge expires, he could still be considered for appointment as an additional Judge for a further term or as a permanent Judge in his own High Court, there being nothing in the circular letter against it and the procedure set out in Clause (1) of Article 217 would then be followed. An additional Judge, as we have already pointed out above, is entitled to be considered for appointment as an additional Judge for a further term or as a permanent Judge in his own High Court and such appointment cannot be refused to him on the ground he has not given his consent for being appointed as a permanent Judge in another High Court, Such a ground for discontinuing an additional Judge on the expiration of his term would be a wholly irrelevant ground and we do not think it could ever have been intended by the Law Minister consistently with the constitutional requirement that an additional Judge who does not give his consent for being appointed as a permanent Judge outside his High Court should on that account be discontinued as an additional Judge on the expiration of his term. It would not be right to read the circular letter with a suspicious eye as if it was designed to cow down the additional Judges into submission by holding out an implied threat to them. There are, in fact, quite a few Judges who have not given their consent to be appointed as permanent Judges in another High Court and no adverse consequence has ensued to them. We do not think that our additional Judges are made of such weak stuff that they would submit to any supposed threats by the Executive and give their consent to be appointed as permanent Judges in another High Court out of fear that they might be discontinued as additional Judges if they do not give such consent.
50. There was also one other contention advanced on behalf of the petitioners, namely, that to require a person whose name is to be recommended for initial appointment as a Judge to give his consent for being appointed as a Judge in another High Court would be to introduce an irrelevant qualification for the appointment of a Judge. The argument was that to obtain such consent from a person whose name is to be recommended for appointment would be to introduce a requirement for appointing a Judge which is not prescribed by the Constitution and the obtaining of such consent would therefore be unconstitutional. It is, with the greatest respect to the learned Counsel appearing on behalf of the petitioners, extremely difficult for us to appreciate this argument. When the name of a person is being considered for appointment as a Judge because he is regarded as suitable for such appointment, we fail to see why he cannot be asked whether he is willing to be appointed as a Judge in another High Court. It is for him to decide whether or not to give his consent for such appointment. He may very well say that he is not agreeable to be appointed as a Judge in any High Court other than his own, but if, in the exercise of his own volition, he gives his consent for being appointed as a Judge in another High Court, it is difficult to see how it can ever be contended that by obtaining such consent, an irrelevant qualification for appointment of a Judge has been introduced. It is not as if a person who does not give his consent for being appointed as a Judge in another High Court would necessarily be refused appointment in his own High Court. It is significant to note that, in fact, even after the date of the circular letter, quite a few new appointments have been made in different High Courts of persons either practising as lawyers in those High Courts or working as District Judges under those High Courts.
51. The last contention urged, on behalf of the petitioners was that the circular letter was really an attempt on the part of the Government to transfer Judges from one High Court to another by circumventing the decision of this Court in Sankalchand Sheth’s case (supra). This contention urged on behalf of the petitioners is wholly unfounded and no amount of legal casuistry or ingenuity can sustain it. It is difficult to appreciate how the circular letter can at all be interpreted as an attempt to bring about transfer of Judges from one High Court to another. The circular letter deals with two categories of persons; one is the category of persons who are recommended or may in future be recommended for initial appointment as Judges and the other is the category of additional Judges who are appointed for a period of two years or less. So far as the first category of persons is concerned, it is impossible to contend and with all his ingenuity even Mr. Seervai appearing on behalf of the petitioners could not argue, that when a person who is recommended or proposed to be recommended for initial appointment as a Judge is asked whether he is willing to be appointed as a Judge in another High Court, any transfer is involved in such process. When such person is not a sitting Judge in any High Court and is appointed for the first time in another High Court, it is difficult to see how he can be said to be transferred. The transfer contemplated in Article 222 Clause (1) is not a mere act of physical locomotion or transfer of residence from one place to another, but it is an act by which a Judge in one High Court is transferred as a Judge of another High Court Equally there is no transfer involved where an additional Judge is, on the expiration of his term, appointed as an additional Judge in another High Court or is appointed as a permanent Judge in any other High Court. It is no doubt true that by reason of his appointment as an additional Judge or permanent Judge in another High Court he has physically to go to that High Court, but it is not while being a Judge of one High Court that he goes over as a Judge of the other High Court. His appointment as an additional Judge of one High Court comes to an end and he is appointed afresh as an additional or permanent Judge in another High Court. It is by virtue of fresh appointment that he becomes a Judge, whether additional or permanent, of another High Court and he is not transferred from one High Court to another within the meaning of Clause (1) of Article 222. If the contention of the petitioners were correct, it would not be necessary, white appointing an additional or permanent Judge in another High Court, to follow the procedure set out in Clause (1) of Article 217 and to consult the Chief Justice of the latter High Court and the Governor of that State as required by that article and it would be possible to appoint such person as an additional OT permanent Judge in another High Court after consulting only the Chief Justice of India under Clause (1) of Article 222. This proposition has only to be stated in order to be rejected; it would clearly amount to circumventing the provisions of Clause (1) of Article 217. Take for example a case where a person who is an additional Judge in a High Court for a period of two years is, on the expiration of his term of two years, appointed as a permanent Judge in another High Court. Can such appointment of a permanent Judge be made in the other High Court without consulting the Chief Justice of that High Court and the Governor of that State under Clause (1) of Article 217? There is in such a case no transfer at all; it is a case of fresh appointment made in the other High Court and that can be done only after going through the procedure set out in Clause (1) of Article 217.
52. Mr. Seervai, appearing on behalf of the petitioners however relied strongly on a speech made by the Law Minister in the Lok Sabha on 16th April, 1981, where at columns 271 and 274 of the Lok Sabha Debates, the Law Minister himself had used the expression ‘transfer’ while speaking about the circular letter. The learned Counsel contended that the use of the expression transfer’ by the Law Minister himself supported his argument that what the circular letter sought to do was to transfer Judges from one High Court to another. This contention is in our opinion wholly unsustainable and it is no better than relying on a broken reed. It is undoubtedly true that in columns 271 and 274, the Law Minister used the ex-pression ‘transferl or ‘transferred’ while referring to the circular letter, but one cannot fasten upon a stray use of a loose expression for the purpose of determining what is the true effect of the circular letter. The speech ‘ of the Law Minister has to be read as a whole and if it is so read, it is clear that at more than one place, the Law Minister made it clear that what was contemplated by the circular letter was “not a case of transfer but a case . of an appointment under Article 217” vide Col. 273. The Law Minister also reiterated in Col; 223 that “in so far as additional Judges are concerned, the circular’ letter seeks to obtain their consent to their appointment as permanent Judges to High Courts outside and these would be appointments under Article 217”. Then again in Col. 270 the Law Minister clarified that the “appointment of an additional Judge as a permanent Judge could also be termed as an initial appointment.” The expression ‘transfer’ or ‘transferred’ in columns 271 and 274 was obviously used in a loose sense meaning physical locomotion. It must be remembered that the impression happened to be used by the Law Minister in an ex-tempore speech made on the floor of the House and not in a document or letter prepaid after much care and deliberation. No undue reliance can therefore be placed on behalf of the petitioners on the use of the expression ‘transfer’ or ‘transferred’ in the speech of the Law Minister. Mr. Seervai also relied strongly on the circumstance that three associations of lawyers in Bombay had all taken the view that the circular letter contemplated transfer of additional Judges and sought their consent to such transfer. But this circumstance has very little relevance in the interpretation of the circular letter for it is not for the lawyers practicing in a particular High Court to construe the circular letter but for this Court to determine what is the true meaning of that document. We are clearly of the view — in fact we find it impossible to take a different view — that what was contemplated by the circular letter was not transfer of additional Judge from one High Court to another and it did not therefore, have to satisfy the requirements of Clause (1) of Article 222.
53. But quite apart from this consul duration, even if the view be taken that what the circular letter sought to achieve was transfer of additional Judges from one High Court to another, it is difficult to see how by obtaining consent of the additional Judges in advance, the Law Minister would be circumventing the majority decision in Sankalchand Sheth’s case (supra). The majority view in Sankalchand Sheth’s case (supra) was that a Judge can be transferred from one High Court to an-other without his consent, taut the transfer must be after full and effective consultation with the Chief Justice of India and it must not be by way of punishment but must be in public interest. Therefore, obviously it would be of no help to the Law Minister to obtain the consent of an additional Judge in advance to be appointed as a permanent Judge in any other High Court, because despite such consent, the additional Judge cannot be appointed as a permanent Judge in another High Court with out full and effective consultation with the Chief Justice of India and according to the majority decision in Sankalchand Sheth’s case (supra), the opinion given by the Chief Justice of India would be entitled to , the greatest weight and any departure from it would have to be justified by the Central Government on strong and cogent grounds. In. such a case, even where the consent of the additional Judge has been obtained in advance, the Chief Justice of India would have to consider whether it is in public interest to appoint the additional Judge as a. permanent Judge in another High Court and the consent obtained in advance would not pre-empt the consultative exercise with the Chief Justice of India. The advance consent obtained from the additional Judge would have no meaning so far as the Chief Justice of India is concerned, because irrespective whether the additional Judge has given his consent or not, the Chief Justice of India would have to consider whether it would be in public interest to allow the additional Judge to be appointed as a permanent Judge in the other High Court. Therefore, even on the assumption that the appointment of an additional Judge as a permanent Judge in another High Court amounts to transfer, which of course we emphatically repudiate, it is difficult to see how the circular letter can be construed as an attempt to circumvent the majority decision in Sankalchand Sheth’s case (supra).
54. We do not therefore find any Constitutional or legal infirmity or any abuse or misuse of authority on the part of the Law Minister in issuing the circular letter. The circular letter does not violate the provisions of Clause (1) of Article 217 or Clause (1) of Article 222 nor does it offend against any other constitutional or legal provision and the challenge against the validity of the circular letter must, therefore, fail. We may, however, while affirming the validity of the circular letter, make it clear that since an additional Judge has a right to be considered for appointment as an additional Judge for a further term on the expiration of his original term, and in case of a vacancy in permanent post, for appointment as a permanent Judge in his own High Court, he cannot be discontinued as an additional Judge on he ground that he has not given his consent for being appointed as a permanent Judge in any other High Court, Such a ground for discontinuing an additional Judge would be a wholly irrelevant ground and if, on the expiration of his original term, an additional Judge is discontinued on any such ground, the decision of the President discontinuing him would be unconstitutional and void and the Union of India would be liable to be directed to reconsider his cage on the basis of relevant considerations after excluding the irrelevant, ground.
Disclosure of documents: Privilege.
55. We now come to a very important question which was agitated before us’ at great length and which exercised our minds considerably before we could reach a decision, The question related to the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to the non-appointment of O.N. Vohra and S.N. Kumar as additional Judges. The learned Counsel for the petitioners and S.N. Kumar argued before us with great passion and vehemence that these documents were relevant to the inquiry before the Court and they should be directed to be disclosed by the Union of India. This claim of the petitioners and S.N. Kumar for disclosure was resisted by the Solicitor General of India on behalf of the Union of India and Mr. Mridul on behalf of the Law Minister. They contended that so far as O.N. Vohra was concerned his case stood on an entirely different footing from that of S.N. Kumar since, unlike S.N. Kumar who allied himself with the petitioners and actively participated in the arguments almost as if he was petitioner, O.N. Vohra though made a party respondent to the writ petition of V.M. Tarkunde did not appear and participate in the proceedings or seek any relief from the Court in regard to his continuance as an additional Judge. Mr. Mridul on behalf of the Law Minister informed us that in fact O.N. Vohra had started practice in the Delhi High Court and his case could not be considered by us when he himself did not want any relief. So far as the case of S.N. Kumar was concerned the learned Solicitor General on behalf of the Union of India conceded that the documents of which disclosure was sought on behalf of the petitioners and S.N. Kumar were undoubtedly relevant to the issues arising before the Court, but contended — and in this contention he was supported by Mr. Mridul on behalf of the Law Minister — that they were privileged against disclosure for a twofold reason. One was that they formed part of the advice tendered by the Council of Ministers to the President and hence by reason of Article 74 Clause (2) of the Constitution the Court was precluded from ordering their disclosure and looking into them and the other was that they were protected against disclosure under Section 123 of the Indian Evidence Act since their disclosure would injure public interest. We propose to consider these rival arguments in the order in which we have set them out, first in regard to O.N. Vohra and then in regard to S.N. Kumar.
56. So far as O.N. Vohra is concerned, it is apparent that though he was joined as a party respondent to the writ petition filed by V.M. Tarkunde, he did not choose to appear and take part in the proceedings. He did not even file an appearance, presumably because he was not interested in wresting back the office of an additional Judge through a Judicial writ. He adopted a commendable attitude consistent with the dignity of the High office which he had the privilege to hold for over two years and scorned to be a party to any litigative adventure for getting back the office of a High Court Judge. He took the view that the office of a High Court Judge is no mean office for which one may canvass, lobby or fight but it is a high position which can only be offered and which one should regard as an honour to be invited to fill and if for any reason, justifiable or not, the Government chooses not to offer it to the deserving person, it may result in detriment to public interest for which the Government may have to account to the people through their elected representatives, but the person concerned should not litigate his claim to this high office. That would lower the dignity of the office by making it the subject matter of litigative controversy. It was presumably for this reason that O.N. Vohra did not appear in the writ petition or seek any relief from the Court in regard to his continuance as an additional Judge. In fact, we are told. O.N. Vohra has already started practice in the Delhi High Court, Now if O.N. Vohra has not come forward to seek any relief from the Court and is not claiming that he should be deemed to have been appointed a permanent Judge or that he should be reappointed as an additional Judge for a further term, it is difficult to see how the Court can be called upon to examine his case for the purpose of determining whether he was wrongly discontinued as an additional Judge. We have taken a broad and liberal view in regard to locus standi and held that any public spirited advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging an unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. But the persons for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it. If, in the present case. O.N. Vohra does not seek to go back as an additional Judge through judicial intervention, the petitioners cannot contend that he must still be continued as an additional Judge irrespective of his inclination. The relief sought by the petitioners being primarily for the benefit of O.N. Vohra, it is for O.N. Vohra to decide whether he would have it and if he does not want it, it would be a fruitless exercise for the Court to determine whether the decision not to appoint him as an additional Judge was unconstitutional and he should have been appointed as an additional Judge for a further term. The Court does not decide issues in the . abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and If no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or a bust of power. The Court cannot take upon itself the role of a commission of inquiry — a knight errant roaming at will with a view to destroying evil wherever it is found It was for this reason that we held that the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to non-appointment of O.N. Vohra was not relevant to the issues arising for determination in the writ petition and the Union of India could not be required to disclose it
57. That takes us to the case of S.N. Kumar which stands on a totally different footing, because S.N. Kumar has appeared in the writ petition, filed an affidavit supporting the writ petition and contested, bitterly and vehemently, the decision of the Central Government not to continue him as an additional Judge for a further term. Since S.N. Kumar has claimed relief from the Court in regard to his continuance as an additional Judge, an issue is squarely joined between the petitioners and S.N. Kumar on the one hand and the Union of India on the other which requires to be determined for the purpose of deciding whether relief as claimed in the writ petition can be granted to S.N. Kumar. Now, as we have already pointed out while discussing the scope and ambit of Article 217, there are only two grounds on which the decision of the Central Government not to continue an additional Judge for a further term can be assailed and they are, firstly, that there has been no full and effective consultation between the Central Government and the constitutional authorities required to be consulted under that Article and secondly, that the decision of the Central Government is based on irrelevant grounds. It was on both these grounds that the petitioners and S.N. Kumar impugned the decision of the Central Government, not to appoint S.N. Kumar as an additional Judge for a further term and there can be no doubt that the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India would be relevant qua both these grounds. The learned Solicitor General on behalf of the Union of India and Mr. Mridul on behalf of the Law Minister, with the usual candour and frankness always shown by them, did not dispute the relevance of these documents to the issues arising in the writ petition in regard to S.N. Kumar, but contended that they were protected against disclosure under Article 74 Clause (2) of the Constitution as also Section 123 of the Indian Evidence Act. This contention raised an extremely important, question in the area of public law particularly in the context of the open society which we are trying to evolve as part of the democratic structure and it caused great concern to us for it involved a clash between two competing aspects of public interest, but ultimately after inspecting these documents for ourselves and giving our most anxious thought to this highly debatable question, we decided to reject the claim for protection against disclosure and directed that these documents be disclosed by the Union of India. We now proceed to give our reasons for this decision taken by us by a majority of six against one.
58. The first ground on which protection against disclosure was claimed on behalf of the Union of India and the Law Minister was baaed on Article 74 Clause (2) of the Constitution. It is clear from the constitutional scheme that under our Constitution the President is a constitutional Head and is bound to act on the aid and advice of the Council of Ministers. This was the position even before the amendment of Clause (1) of Article 74 by the Constitution (42nd Amendment) Act 1976, but the position has been made absolutely explicit by the amendment and Article 74 Clause (1) as amended now reads as under:
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.
What was Judicially interpreted even under the unamended Article 74 Clause (1) has now been given Parliamentary recognition by the constitutional amendment. There can therefore be no doubt that the decision of the president under Article 224 read with Article 217 not to appoint an additional Judge for a further term is really a decision of the Council of Ministers and the reasons which have weighed with the Council of Ministers in taking such decision would necessarily be part of the advice tendered by the Council of Ministers to the Preaident. Now Clause (2) of Art, 74 provides:
The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court.
The Court cannot, having regard to this constitutional provision, embark upon an inquiry as to whether any and if so what advice was tendered by the Council of Ministers to the President and since the reasons which have prevailed with the Council of Ministers in taking a particular decision not to continue an additional Judge for a further term would form part of the advice tendered to the President, they would be beyond the ken of judicial inquiry. But the Government may in a given case choose to disclose these reasons or it may be possible to gather them from other circumstances, in which event the Court would be entitled to examine whether they bear any reasonable nexus with the question of appointment of a High Court Judge or they are constitutionally or illegally prohibited or extraneous or irrelevant. But if these reasons are not disclosed by the Government and it is otherwise not possible to discover them, it would be impossible for the Court to decide whether the decision of the Central Government not to appoint an additional Judge for a further term is based on irrelevant grounds. There would however not be much difficulty by and large in cases of this kind to gather what are reasons which have prevailed with the Central Government in taking the decision not to continue an additional Judge. Article 217 requires that there must be full and effective consultation between the president, that is, the Central Government on the one hand and the Chief Justice of the High Court, the Governor, that is, the State Government and the Chief Justice of India on the other and the “full and identical facts” on which the decision of the Central Government is based must be placed before the Chief Justice the High Court, the State Government and the Chief Justice of India, The reasons which the Central Government is inclined to take into account for reaching a particular decision have therefore necessarily to be communicated to the Chief Justice of the High Court, the State Government and the Chief Justice of India and in the circumstances, it should ordinarily be possible for the Court to gather from such communication, the reasons which have persuaded the Central Government to take its decision. Of course there may be cases where there are several reasons discussed between the Central Government and the three constitutional authorities and some of these reasons’ may be relevant, while some others may be irrelevant and without inquiring into the advice given by the Council of Ministers to President, it may not be possible to determine as to what are the reasons, relevant or irrelevant, which have weighed with the Central Government in taking its decision and in such a case, the Court may not be able to pronounce whether the decision of the Central Government is based on irrelevant grounds. But ordinarily the correspondence exchanged between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India would throw light on the question as to what are the reasons’ which have impelled the Central Government to take any particular decision regarding the continuance of an additional Judge. This correspondence would also show whether the “full and detailed facts” on which the decision of the Central Government is based were placed before the Chief Justice of the High Court, the State Government and the Chief Justice of India before they gave their opinion in the course of the consultative process, Of course if the communication between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India has not taken place by correspondence but. has been the subject matter of only oral talk or discussion, it would become impossible for the Court to discover the reasons which have weighed with the Central Government in taking the decision not to continue the additional Judge for a further term, unless of retires the Central Government chooses to disclose such reason and it would also become extremely difficult for the Court to decide whether the “full and detailed facts” on which the decision of the Central Government is based were placed before the other three constitutional authorities and there was full and effective consultation as required by Article 217. The Court would then have to depend only on such affidavits as may be filed before it and the task of the Court to as-certain the truth would be rendered extremely delicate and difficult, as it has been in the writ petitions challenging the transfer of Mr. Justice K.B.N. Singh, Chief Justice of patna High Court. It is not at all desirable that when the Chief Justice of the High Court or the Chief Justice of India has to communicate officially with the State Government or the Central Government in regard to a matter where he is discharging a constitutional function, such communication should be only by way of oral talk or discussion unrecorded in writing. We thank it absolutely essential that such communication must, as far as possible, be in writing, whether by way of a note or by way of correspondence. The process of consultation, whether under Article 217 or under Article 222. must be evidenced in writing so that if at any point of time a dispute arises as to whether consultation had in fact taken place or what was the nature and content of such consultation, there must be documentary evidence to resolve such dispute and an ugly situation should not arise where the word of one constitutional authority should be pitted against the word of another and the Court should be called upon to decide which of them is telling the truth. Oral talk or discussion may certainly take place between the Central Government and any other constitutional authority required to be consulted but if must be recorded immediately either in a note or in correspondence. Besides eliminating future dispute or controversy, the practice of having written communication or record of oral discussion ensures greater care and deliberation in expression of views and considerably reduces the possibility of improper or unjustified recommendations or unholy confabulations or conspiracies which might be hidden under the veil of seereey… there were no written record Moreover, such a practice would tend to promote openness in society which is the hall-mark of a democratic polity. It would indeed be highly regrettable if, instead of following this healthy practice of having a written record of consultation, the Central Government or the Chief Justice of the High Court or the Chief Justice of India were to carry on the consultation process either on the telephone or by personal discussion without rendering it. But we find that fortunately in the present case, unlike K.B.N. Singh’s case which falls for determination in the second batch of writ petitions, there was correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to the continuance of S.N. Kumar and the question is whether this correspondence forms part of the advice tendered by the Council of Ministers to the President so to be protected against disclosure by reason of Clause (2) of Article 74.
59. The argument of the learned Solicitor General was this correspondence did not form part of the advice tendered by the Council of Ministers to the President and he sought to support this argument by adopting the following process of reasoning. He said that the Council of Ministers cannot advice the President to appoint or not to appoint an additional Judge for a further term without consulting the Chief Justice of the High Court and the Chief Justice of India. It is only after consulting them that appropriate advice can be tendered by the Council of Ministers to the President. When advice is tendered by the Council of Ministers to the President, it is open to the President under the Proviso to Clause (1) of Article 74 not to immediately accept such advice butte require the Council of Ministers to reconsider the advice generally or otherwise. If in a given case the President finds that advice has been given by the Council of Ministers without consulting either the Chief Justice of the High Court or the Chief Justice of India or both or that there has been no full and effective consultation with them as required by the Constitution, he may and indeed he must, send the case back to the Council of Ministers and requite them to consider the advice after carrying out full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India. Now how can the President satisfy himself in regard to the fulfilment of the constitutional requirement of consultation with the Chief Justice of the High Court and the Chief Justice of India, unless the views expressed by the two Chief Justices are placed before him along with the advice tendered by the Council of Ministers. The exercise of the power of the President to appoint or not to appoint an additional Judge is so integrally connected with the constitutional requirement of full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India that at no stage can it be delinked from the views expressed by them on consultation and it would not be possible for the President to exercise this executive power in accordance with the Constitution unless the views of the two Chief Justices are placed before him. On the basis of this reasoning and as a logical consequence of it, argued the learned Solicitor General, the views of the Chief Justice of Delhi and the Chief Justice of India obtained on consultation must be regarded as forming part of the advice tendered by the Council of Ministers to the President. The learned Solicitor General sought to draw support for his argument from the decision of a Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev Singh . We shall Presently refer to this decision but before we do so, let 115 examine the argument of the learned Solicitor General on principle.
60. There can be no doubt that the advice tendered by the Council of Ministers to the President is protected against judicial scrutiny by reason of Clause (2) of Article 74. But can it be said that the views expressed by the Chief Justice of the High Court and the Chief Justice of India on consultation form part of the advice. The advice is given by the Council of Ministers after consultation with the Chief Justice of the High Court and the Chief Justice of India. The two Chief Justices are consulted on “full and identical facts” and their views are obtained and it is after considering those views that the Council of Ministers arrives at its decision and tenders its advice to the President. The views expressed by the two Chief Justices precede the formation of the advice and merely because they are referred to in the advice which is ultimately tendered by the Counsel of Ministers, they do not necessarily become part of the advice. What is protected against disclosure under Clause (2) of Article 74 is only the advice tendered by the Council of Ministers. The reasons which have weighed with the Council of Ministers in giving the advice would certainly form part of the advice, as held by this Court in State of Rajasthan v. Union of India . Vide the observations of Beg C.J. at; p. 46 (of SCR): (at p, 1392 of AIR). Chandrachud J. (as he then was) at page 91 (of SCR): (at p. 1420 of AIR) Fazal Ali, J. at pp. 120 and 121 (of SCR) : (at pp. 1440, 1441 of AIR) where all the three learned Judges took the view that by reason Clause (2) of Article 74 the Court would be barred from inquiring into the grounds which might weigh with the Council of Ministers in advising the President to issue a proclamation under Article 356, because the grounds would form part of the advice” tendered by the Council of Ministers. But the material on which the reasoning of the Council of Ministers is based and the advice is given cannot he sad to form the part of advice, The point we are making may be illustrated by taking the analogy of a judgment given by a Court of Law, The judgment would undoubtedly be based on the evidence led before the Court and it would refer to such evidence and discuss it but on that account can it be said that the evidence forms part of the Judgment? The judgment would consist only of the decision and the reasons in support of it and the evidence On which the reasoning and the decision are based would not be part of the judgment Similarly the material on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly he held to be outside the exclusionary rule enacted in Clause (2) of Article 74.
61. We may now refer to the decision of the Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev Singh (supra) on which the greatest reliance was placed by the learned Solicitor General in support of his plea based on Clause (2) of Article 74. The respondent who was the District and Sessions Judge in the erstwhile state of Pepsu was removed from service by an order dated 7th April 1953 passed by the President who was then in charge of the Administration of the State. The respondent made a representation against the Order of removal which was considered by the Council of Ministers of the State as in the meantime the President’s rule had come to an end and the Council of Ministers expressed its views in a Resolution passed on 28th Sept. 1955, But before taking any action it invited the Report of the Public Service Commission. On receipt of the Report of the Public Service Commission the Council of Ministers considered the matter again and ultimately on 11th Aug. 1956 it reached the final conclusion against the respondent and in accordance with the conclusion, the order was passed to the effect that the respondent must be re-employed on some suitable post. The respondent thereupon instituted a suit against the successor State of Punjab for a declaration that his removal from service was illegal and in that suit he filed an application for the production of certain documents which included inter alia the proceedings of the Council of Ministers dated 28th Sept. 1055 and 11th Aug. 1956 and the Report of the Public Service Commission. The State objected to the production of these documents and ultimately the matter came before this Court. C(SIC)ajen-dragadkar, J. (as he then was) speaking on behalf of the majority of the Court upheld the claim of privilege put-forward on behalf of the State and so far as the Report of the Public Service Commission was concerned, the learned Judge held that it was protected against disclosure both under Clause (3) of Article 163 and Section 123 of the Indian Evidence Act, We are at present concerned only with the claim for protection under Clause (3) of Article 183 because that is an Article which corresponds to Clause (2) of Article 74 in so far as advice by the Council of Ministers to the Governor is concerned. The learned Judge speaking on behalf of the majority, accorded protection to the report of the Public Service Commission under Clause (3) of Article 163 on the ground that it formed part of the advice , tendered by the Council of Ministers to the Rajpramukh. This view taken by the majority does appear prima facie to support the contention of the learned Solicitor General, but we do not think we can uphold the claim for protection Put. forward by the learned Solicitor General by adopting a process of analogical reasoning from the majority view in this decision. In the first place, we do not know what were the circumstances in which the majority Judges came to regard the report of the Public Service Commission, as forming part of the advice tendered to the Rajpramukh. There is no reasoning in the judgment of the learned Judge showing as to why the majority held that the report of the Public Service Commission fell within the terms of Clause (3) of Article 163. The learned Judge has merely set out his ipse dixit, without any reasons at all, saying in just one sentence, “The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers.” It is elementary that what is binding on the court in a subsequent case it not the conclusion arrived at in a previous decision but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion. Secondly, we may point out that we find it (SIC)lfrcult to accept the view taken by the majority in this case. We are unable to appreciate how the report of the Public Service Commission which merely formed the material on the basis of which the Council of Ministers came to its decision as recorded in the proceedings dated 11th Aug. 1956 could be said to form part of the advice tendered by the Council of Ministers to the Rajpramukh, We do not think the learned Solicitor General can invoke the aid of this decision in support of his claim for protection under Clause (2) of Article 74.
62. That takes us to the next question whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India is protected from disclosure under any other provision of law. We do not have in India any common law protection under the label of “Crown Privilege as it was known a decade ago and now castled “Public interest immunity” as there is in Eng-land and the only provision of law under which such immunity can be claimed is Section 123 of the Indian Evidence Act and. therefore, it is this provision which we must now turn to consider. But, before we do so, we would like to indicate the socio-political background in the context of which this section has to be interpreted. It is true that this section was enacted in the second half of the 1ast century but its meaning and content cannot remain static. The interpretation of every statutory provision must keep pace with changing concepts and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing (SIC)octety which is undergoing rapid special and economic transformation. The language of a statutory provision is not a static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in a country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken dawn, dusted admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform, a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonies, the law with the prevailing concepts and values and make it an effective, instrument for delivery of justice. We need not therefore be obsessed with the fact, that Section 123 is a statutory provision of old vintage or that it has been interpreted in a particular manner some two decades ago. It is not as if it has once spoken and then turned into muted silence. It is an instrument which can speak again and in a different voice in the content of a different milieu. Let us therefore try to understand what voice this statutory provision speaks today in a democratic society wedded to the basic values enshrined in the Constitution.
63. Mow it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy. “Knowledge” said James Madison, “will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it. is but a prologue to a farce or tragedy or perhaps both.” The citizens’ right, to know the facts, the true facts, about, the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.
64. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy, does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a moralities content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also emeralds sound judgment on the conduct of the government and the merits of public policies; so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of government–an attitude and habit of mind. But this important role people can fulfill in a democracy only if it is an open government where there is full access to information in regard to the functioning of the government,
65. There is also in every democracy a certain amount of public suspicion and distrust of government varying of course from time to time according to its performance, which prompts people to insist upon maximum exposure of its functioning. It is axiomatic that every action of the government must be actuated by public interest but even so we find cases, though not many, where governmental action is taken not for public good but for personal gain 6r other extraneous considerations. Sometimes governmental action is influenced by political and other motivations and pressures arid at tunes, there are also instances of misuse or abuse of authority on the part of the executive, NOW, if secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means, of information available to the public there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that’ exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is dean government and a powerful safeguard against political and administrative aberration and inefficiency.
66. The Franks Committee of the United Kingdom also observed to the same effect while pleading for an Government. It said in its report at P 12:
A totalitarian government finds it easy to maintain secrecy. It does not come into the open until it chooses to declare its settled intentions and demand support for them. A democratic government, however, though it must compete with these other types of organisation, has a task which is complicated by its obligations to the people. It needs the trust of the governed. It. cannot, use the plea of secrecy to hide from the people its basic aims. On the contrary it must explain these aims: it must provide the justification for them and give the facts both for and against a selected course of action. Now must such information be provided only at one level and through one means of communication? A government which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper functions requires, or which turns information services into propaganda agencies, will lose the trust of the people. It will be countered by ill-informed and destructive criticism. Its critics will try to break down all barriers erected to preserve secrecy and they will disclose all that they can by whatever means, discover. As a result matters will be revealed when they ought to remain secret in the interests of the nation.
So also we find observations in the same strain by Mathew, J. in State of Uttar Pradesh v. Raj Narain In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets, The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate have no repercussion on public security. To cover with veil of secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. Is generality derided for the (SIC) of parses and (SIC) interest or (SIC)the responsibility of (SIC)expioin and to justify there acts is the chief safeguard against oppression and corruption.
The need for an open Government where there is access to information in regard to the functioning of government has been emphasised and the arg(SIC)ments in support of it have been ably and succinctly summarised in the following passage from the book of Dr. S.R. Maheshwari on “Open Government in India” at pages 95 and 96:
Administrative India puts the greatest weight on keeping happening with-in its corridors secret, thereby denying the citizens access to information about them.
Such orientations produce deep contradictions in the larger socio-political system of the land which itself is in a state requiring nourishment and care, As the latter is still relatively new and in its infancy, its growth processes inevitably get retarded for want of information about the Government, which means from the Government. Over-concealment of governmental information creates a communication gap between the governors and the governed, and its persistence beyond a point is apt to create an alienated citizenry. This makes democracy itself weak and insecure. Besides, secrecy renders administrative accountability unenforceable in an effective way and thus induces administrative behavior which is apt to degenerate into arbitrariness and absolutism. This is not all.
The Government, today, is called upon to make policies on an ever increasing range of subjects, and many of these policies must necessarily Impinge on the lives of the citizens. It may sometimes happen that the data made available to the policymakers is of a selective nature, and even the policymakers and their advisers may deliberately suppress certain view points and favour others. Such bureaucratic habits get encouragement in an environment of secrecy; and openness in governmental work is possibly the only effective corrective to it, also raising, in the process, the quality of decision making. Besides, openness has an educational role inasmuch as citizens are enabled to acquire a fuller view of the pros and cons of matters of major importance, which naturally helps in building informed public opinion, no less than goodwill for the Government This is the new democratic culture of an open society towards which every liberal democracy is s(SIC)ioving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest. It is in the context of this background that we must proceed to interpret Section 123 of the Indian Evidence Act.
67. We might begin by reproducing Section 123 which reads as follows:
Section 123 : Evidence as to affairs of State — No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
It is also necessary for arriving at a proper interpretation of Section 123 to refer to Section 162 which says:
Section 162. Production of documents — A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.
The court, if sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Translation of documents — If for such a purpose it is necessary to causing document to be translated, the court may, if it thinks fit. direct the translator to keep the contents secret, unless the document is to be given in evidence and if the interpreter disobeys such directions, he shall be held to have committed an offence under Section 166 of the Indian Penal Code, 1860 (45 of 1860).
These two sections came up for consideration for the first time before this Court in State of Punjab v. Sodhi Sukhdev Singh (supra). Gajendragadkar, J. (as he then was), speaking on behalf of him-self, Sinha, C.J. and Wanchoo, J. pointed out that the principle behind the exclusionary rule enacted in Section 123 is that a document should not be allowed to be produced in court if such production would cause injury to public interest and where a conflict arises between public interest in non-disclosure and private interest in disclosure, the latter must yield to the former. The learned Judge emphasized that though Section 123 does not expressly refer to injury to public interest, that principle is obviously implicit in it and indeed it is the sole foundation and proceeded to add that even though administration of justice is a matter of very high public importance, if there is a real “conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be conceded that the interest of the individual cannot prevail over the public interest.” Now we agree with the learned Judge that public interest lies at the foundation of the claim for protection against disclosure enacted in Section 123 and it seeks to prevent production of a document where such production would cause public injury but we do not think the learned Judge was right in observing that the interest which comes into conflict with the claim for non-disclosure is the private interest of the litigant in disclosure, It is rather the public interest in fair administration of justice that comes into dash with the public interest sought to be protected by nondisclosure and the court is called upon to balance these two aspects of public interest and decide which aspect predominates. We shall have to discuss this problem of balancing different aspect of public interest a little later, but in the meanwhile let us continue with the examination of the decision in Sukhdev Singh’s case (supra). Gajendragadkar, J. (as he then v/as) after pointing out that public interest was the sole foundation for the claim for protection under Section 123 proceeded to consider when a document can be said to be relating to “affairs of State” within the meaning of that section. The learned Judge observed that three different views are possible on this question. The first view is that documents relating to affairs of State are broadly divisible into two classes, one the disclosure of which will cause no injury to public interest and which may therefore be described as innocuous documents and the other the disclosure of which may cause injury to public interest and may therefore be described as noxious documents; it is the head of the department who decides to which class the document in respect of which the claim for protection against disclosure is made, belongs; if he comes to the conclusion that the document is innocuous, he will give permission for its production; if, however, he comes to the conclusion that the document is noxious, he will withhold such permission; in any case the court does not materially come into the picture. The second view is that documents relating to affairs of State should be confined only to the class of noxious documents and when a question arises, it is for the court to deter mine the character of the document and if necessary, to enquire whether its disclosure would lead to injury to public interest, The third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for it is not the policy of Section 123 that in the case of every noxious document, the head of the department must always withhold permission. The learned Judge then proceeded to consider which of the three views represents the correct legal position and for that purpose, turned to examine Section 162 and after discussing the true import of that section and holding that where an objection to the disclosure of a document is raised under Section 123 on the ground that it relates to affairs of State toil cannot (SIC)pect the (SIC)dreaming for the purpose of deciding the objection, the learned juge(SIC) accepted the third view as courses and sammarised his conclusion in the following words:
Thus our concussion is that reading Sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the (SIC)rsa-thority concerned to decide; but the Court is competent, and indeed is bond to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry in the question as to whether the evidence relates to an affairs of State under Section 123 or not.
In this enquiry the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not.
The learned Judge thus took the view in no uncertain terms that documents relating to affairs of State are documents belonging to the noxious class, that is, documents which by reason of their contents or the class to which they belong, are such that disclosure may cause injury to public interest. The learned Judge agreed that it is for the court to determine whether a particular document in respect of which the claim for non-disclosure is made is a document relating to affairs of the State or in other words, it is a document falling within the noxious class, but introduced a serious impediment in the way of the court making such determination by holding that the court cannot for this purpose inspect the document or hold “an enquiry into the possible injury to public interest which may result from the disclosure of the document.” Now, if the court has no power to inspect the document, it is difficult to understand how the court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that the document is one relating , to affairs of State, as ex hypothec document can be said to relate to affairs of State only if its disclosure will cause injury to public interest. It right be that there are certain classes of decrements which are of such a (SIC)araeter that even without inspecting them or conducting an enquiry, it might be possible to say that by virtue of their character, their disClosure would be injurious to public interest and therefore they are documents relating to affairs of State. But. there might be other documents which do not fall within (SIC)tais description and yet whose disclosure might be injurious to public interest and in case of such documents it would not be possible for the court without inspecting them or at any rate without holding an enquiry, to determine whether their disclosure would be injurious to public interest and they should therefore be classified as documents relating to affairs of State. Even so, according to Gajendragadkar, J. and the other learned Judges, the court can and must determine whether such documents relate to affairs of State without inspecting them and without even holding an enquiry into the possible injury to public interest which might result from their disclosure. The view taken by Gajendragadkar, J. and the other learned Judges in Sodhi Sukhdev Singh’s case (supra) thus runs into an inconsistency and creates an illogical situation.
68. There is also another infirmity from which the view taken in Sodhi Sukhdev Singh’s case (supra) suffers. Gajendragadkar, J. speaking on behalf of himself and the other learned Judges observed that when an objection against the disclosure of a document is raised under Section 123, the court must first determine the character of the document and if it conies to the conclusion that the document relates to affairs of State, it should leave it to the Head of the department to decide whether he should permit its production of not. Now even according to Gajendragadkar, J. and the other learned Judges, a document can be said to relate to affairs of State only if it is a document of such a character that its disclosure will injure public interest and therefore the court would have to reach the conclusion that the disclosure of the document will be injurious to public Interest before it can find that the document related to affairs of State. If that be to is difficult to understand, after the court has enquired into the objection and come to the conclusion that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure, because the question to be decided by him would practically be the same, namely, whether disclosure of the document would be injurious to public interest–a question already decided by the court. In other words, if injury to public interest is the foundation of this immunity from disclosure, when once the court has inquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of State, it would in most cases be a futile exercise for the head of the department to consider and decide whether its disclosure should be permitted as he would be making an enquiry into the identical question. There may be a few rare cases where in regard to a document which by reason of the class to which it belongs may be regarded as relating to affairs of State, the head of the department may be able to take the view that though it belongs to the noxious class, its disclosure would not be injurious to public interest and therefore allow it to be disclosed. But, by and large, once the court has found that the document is of such a character that its disclosure will cause injury to public interest, it would be futile to leave it to the head of the department to decide whether he should permit its production or not. We are therefore unable 1o accept the decision in Sodhi Singh’s case (supra) as laying down the correct law on this point. The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document. The basic question to which the court woulherefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the court by reason of Section 162.
69. Now an objection against the disclosure of a document on the ground that it relates to affairs of State may be made before the court either because it would be against the interest of the State or the public service to disclose its contents or because it belongs to a class of document which in the public interest ought not to be disclosed, whether or not it would be harmful to disclose the contents of the particular document. Where immunity from disclosure is claimed on the ground that disclosure of the contents of the document would be injurious to the interest of the State or the public service it would not be difficult to decide the claim because it would almost invariably be supported by an affidavit made either by the Minister or -by the head-of the department and if the Minister or the head of the department asserts that to disclose the contents of the document “would or might do to the nation or the public service a grave injury, the court will be slow to question his opinion or to allow any interest, even that of justice, to prevail over it” unless there can be shown to exist some factor suggesting either lack of good faith or an error of judgment or an error of law on the- part of the minister or the head of the department. But, even in such cases it is now well-settled that the court is not bound by the statement made by the minister or the head of the department in the affidavit and it retains the power to balance the – injury to the State or the public service against the risk of injustice, before reaching its decision. Vide observations of Lord Scarman in Burma Oil v. Bank of England (1970) 3 All ER 700 at p 732. But the claim in the present case to withold disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi. High Court and the Chief Justice of India in regard to can-tinuonce of S.N. Kumar is not based on the ground that the contents of these particular documents are such that their disclosure would harm the na(SIC)onat interest or the interest of public service. The claion put forward by the learned Solicitor General on behalf of the Union of India is that these documents are entitled to immunity from disclosure because they belong to a class of documents, which it would be against national interest or the interest of the judiciary to disclose. It is settled law, and it was so clearly recognised in Raj Narain’s case (supra) that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure. The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class includes cabinet minutes, minutes of discussions between heads of departments, high level interdepartmental communications and dispatches from ambassadors abroad (vide : Conway v. Rimmer, 1968 AC 910 at pp. 952, 973, 979, 987 and 993 and Reg v. Lewes J.K. Ex parte Home Secy., 1973 AC 388 at p. 412). Papers brought into existence for the purpose of preparing a submission to cabinet (vide Commonwealth Lanyon Property Ltd. v. Commonwealth. 129 LR 650) and indeed any documents which relate to the framing of government policy at a high level (vide : Re Grosyenor Hotel. London). It would seem that according to the decision in Sodhi Sukhdev Singh’s case AIR 1961 SC 4931 (supra) this class may also extend to “notes and minute made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reached” in the course of determination of questions of policy Lord Reid in Conway v. Rimmer (supra) at page 952 proceeded also to include in this class “all documents concerned with policy-making within departments including, it may be minutes and the fire by quite junior officials and correspondence with outside bodies”. It is not necessary for us for the purpose of this case to consider what documents legitimately belong to this class so as to be entitled to immunity from disclosure, irrespective of what they contain. But. it does appear that canbinet, papers, minutes of discussions of heads of departments and high level documents relating to the inner working of the government machine or Concerned with the framing of government policies belong to this class which in the public interest must be regarded as protected against disclosure,
70. Now, one reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candor in stating facts, tendering advice and exchanging views and opinions and the possibility that documents night ultimately be published might affect the frankness and candour of those preparing them. This reason based on the need for frankness and candour, though suggested by some Judges, has not found universal acceptance. In Conway v. Rimmer 1968 AC 910 (supra) Lord Reid dismissed the “candour argument” summarily at page 952 and Lord Upjohn pointed out at page 993 that immunity of this class of documents against disclosure has nothing whatever to do with candour or uninhibited freedom of expression”, for it is not possible to believe “that any minister or any high level military or civil servant would feel in the least degree inhibited in expressing his honest views in the course of his duty on some subject, such as even the personal qualifications and delinquencies, of some colleague, by the thought that his observation might one day see the light of day.” Lord Morrieg of Borth-Y-Gest also said in the same case at page 957:
in many decided cases there have been references to a suggestion that, there were knowledge that certain documents (for example reports) might in some circumstances be seen by eyes for which they were never intended, the result would be that in the making of similar documents in the future candour would be lacking. Here is a sug-ge-‘tion of doubtful validity. Would the knowledge that there was a remote chance of possible enforced production really affect candour? If there was knowledge that it was conceivably possible that some person might himself see a report which was written about him, it might well be that candour on the part of the writer of the report would be encouraged rather than frustrated.” Lord Radcliffe also remarked in Glasgow Corporation v. Central Land Board, 1956 SC (HL) 1 at p. 20 that he would have supposed Crown servants to be “made of sterner stuff”, a view shared by Harmen L.J. in the Grosvenor Hotel case at page 1255. Lord Salmon too rejected the “candour theory” in Reg v. Lewes Justices; Ex parte Secretary of State for Home Doptt (1073 AC 388) (supra) at p. 433 by referring to it as “the old fallacy” that “any official in the government service would be inhibited from writing frankly and possibly at all unless he could be sure that nothing which he wrote could ever be exposed to the light of day”. The candour argument has also not prevailed with Judges and jurists in the United States and it is interesting to note what Raoul Berger while speaking about the immunity claimed by President Nixon against the demand for disclosure of the Watergate Tapes, says in his book “Executive Privilege”: A Constitutional Myth” at page 264:
Candid interchange” is yet another pretext for doubtful secrecy. It will not explain Mr. Nixon’s claim of blanket immunity for members of his White House staff on the basis of mere membership without more; it will not justify Kleindienst’s assertion of immunity from congressional inquiry for two and one-half million federal employees. It is merely another testimonial to the greedy expansiveness of power, the costs of which patently outweigh its benefits. As the latest branch in a line of illegitimate succession, it illustrates the excess bred by the claim of executive privitege.
We agree with these learned Judges that the need for candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class, but as pointed out by Gibbos A.C.J. in Sarikey v. Whitlam (supra), it would not be altogether unreal to suppose “that in some matters at least communications between ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure” because not all Crown servants can be expected to be made of “sterner stuff”. The need for candour and frankness must therefore certainly be regarded as a factor to be taken into account in determining whether, on balance, the public interest lies in favour of disclosure or against it (vide: the observations of Lord Denning in Neilson v, Lougharre (1981) 1 All ER at P. 835.
71. There was also one other reason suggested by Lord Reid in Conway v. Rimmer 1968 AC 910 (supra) for according protection against disclosure of documents belonging to this case: “To my mind”, said the learned Law Lord : “the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” But this reason does not commend itself to us. The object of granting immunity to documents of this kind is to ensure the proper working of the government and not to protect the ministers and other government servants from criticism however intemperate and unfairly based. Moreover, this reason can have little validity in a democratic society which believes in an open government. It is only through exposure of its functioning that a democratic government can hope to win the trust of the people. If full information is made available to the people and every action of the government is bona fide and actuated only by public interest, there need be no fear of “ill-informed or captious public or political criticism”. But at the same time it must be conceded that even in a democracy, government at a high level cannot function without some degree of secrecy. No minister or senior public servant can effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to bo made public. It is there-fore in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. What is the measure of this protection is a matter which we shall immediately proceed to discuss.
72. We have already pointed out that whenever an objection to the disclosure of a document under Section 123 is raised, two questions fall for the determination of the court, namely, whether the document relates tq affairs of State and whether its disclosure would, in the particular case before the court, be injurious to public interest. The court in reaching its decision on these two questions has to balance two competing aspects of public interest, because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the non-disclosure would thwart the administration of justice by keeping back from the court a material document. There are two aspects of public interest clashing .with each other out of which the court has to decide which predominates. The approach to this problem is admirably set out in a passage from the judgment of Lord Reid in Con way v. Rimmer 1968 AC 910 (supra) It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents; which must be produced if justice is to be done. There are many cases where the nature of the injury which would of might be done to the nation, or the public service is of so grave a character that no other interest, public Or private, can be allowed to preyail ovet. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question, would put the interest of the State in jeopardy. But there are many other eases where the possible injury to the public service is much less and there one would think that it would he proper to balance the public interests involved.
The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding. Vide the observations of Lord Pearson in Reg, v. Lewes JJ. Ex parte Home Secy 1973 AC 388 (supra) at page 406 of the report. The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the pne competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class. Even in Conway v. Rimmer at P. 952, Lord Reid recognised an exception that cabinet minutea and the like can be disclosed when they have become only of historical interest, and in Lanyon Pvt. Ltd. v. Commonwealth (129 Commonwealth LR 650) (supra) Menzies J, agreed that there might be “very special circumstances” in which such documents might be examined. Lord Scarman also pointed out in the course of his speech in Burmah Oil v. Bank of England 1979-3 All ER 700 (supra) that he did not accept “that there are any classes of documents which, however harmless their content and however strong the requirement of justice, may never be disclosed until they are only of historical interest”. The learned Law Lord said and we are quoting here his exact words since they admirably express our own approach to the subject:
But, is the secrecy of the inner workings of the government machine so vital a public interest that it must prevail over even the most imperative demands of justice ? If the contents of a document concern the national safety, affect diplomatic relations or relate to some state secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret government that it must be protected even at the price of injustice in our courts?
The reasons given for protection the secrecy of government at the level of policy making are two. The first is the need for candour in the advice offered to Ministers; the second is that disclosure ‘would create or fan ill-informed or captious public or political criticism,’ Lord Reid in Con way v. Rimmer thought the second “the most important reason’. Indeed, he was inclined to discount the candour argu-nent. I think both reasons are factors legitimately to be put into the balance which has to be struck between the public interest in the proper functioning of the public service (i. e. the executive arm of the government) and the public interest in the administration of justice, Sometimes the public service reasons will be decisive of the issue; but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the document was not to be disclosed.”
The same view was expressed by Gibhs A.C.J. in Sankey v. Whitlam (supra) 1982 S. C./16 II G-8 where the learned acting Chief Justice said:
I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection — the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned.
There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.
73. What should be the technology and methodology of this balancing task is a matter which we shall presently examine. But, before we do so, it is necessary to point out that class immunity is not confined merely to that class of documents in respect of which nondisclosure is really necessary for the proper functioning of the public service, though mostly it is in respect of documents falling within this class that the claim for class immunity is usually made. There is also another class of documents which has always been recognised by the Court as entitled to the same immunitnd that class consists of documents evidencing the sources from which the police obtain information. Now we agree with the learned Counsel on behalf of the petitioners that this immunity should not be lightly extended to any other class of documents, but, at the same time, boundaries cannot be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from discolsure. If a new class comes into existence to which this principle applies, then that class would enjoy the same immunity. This is the basis on which in Reg. v. Lewes, JJ. Ex parte Home Secy. 1973 AC 388 (supra) the House of Lords extended this immunity to a new class of documents, namely, all such documents as were supplied to the Gaming Board and related to the “character, reputation and financial standing… of the applicant”. Lord Reid pointed out in that case that the claim for protection made on behalf of the Gaming Board was not based on the contents of the particular letter of which disclosure was sought by the appellant, but it was “based on the fact that the Board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them regarding the character, reputation or antecedents of applicants for their consent”. The learned Law Lord posited the question for consideration in the following words: “Here the question is whether the withholding of this class of documents is really necessary to enable the Board adequately to perform its statutory duties” and proceeded to hold that “if there is not to be very serious danger of the Board being deprived of information essential for the proper performance of their task, there must be a general rule that they are not bound to produce any document which gives information to them about any applicant”. Lord Morris of Borth-Y-Gest also observed to the same effect at p. 405 of the Report:
However honourable and public spirited a person might be, he would undoubtedly feel somewhat inhibited in the future if he found that as a result of his last response to a request for information he had himself become a defendant or an accused. The test, however, is not in personal terms. It rests upon a consideration of the necessities of the public service arising out of the rather specialities and functions imposed and recognised by Parliament.” The House of Lords accordingly held that “on balance the public interest clearly requires that documents of this kind should not be disclosed” and thus upheld the claim of immunity in respect of the letter which gave information to the Gaming Board about the character, reputation and antecedents of the appellant. The question is whether immunity of this kind — what we have described as class immunity — should be extended to the class of documents consisting of correspondence exchanged between the Law Minister or other high level functionary of the Central Government, the Chief Justice of the High Court and the Chief Justice of India in regard to appointment or non-appointment of a High Court or Supreme Court Judge.
74. Now we may conveniently at this stage consider the question as to how a claim for immunity against disclosure should be raised under Section 123. It is necessary to repeat and re-emphasize that this claim of immunity can be justifiably made only, if it is felt that the disclosure of the document would be injurious to public interest. Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence — should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court. It has therefore been held since long before Conway v. Rimmer 1968 AC 910 (supra) was decided in England and since the decision in Sodhi Sukhdev Singh’s case (supra) in India that a claim for immunity against disclosure should be made by the minister who is the political head of the department concerned or failing him, by the secretary of the department and the claim should always be made in the form of an affidavit. Where the affidavit is made by the secretary, the Court may in an appropriate case require an affidavit of the minister concerned. The affidavit should show that the document in question has been carefully read and considered and the person making the affidavit has formed the view that the document should not be disclosed either because of its actual contents or because of the class of documents to which it belong. If in a given case no affidavit is filed or the affidavit filed is defective, the Court may give an opportunity to the State to file a proper affidavit. The reason is that the immunity against disclosure claimed under Section 123 is not a privilege which can be waived by the State. It is an immunity which is granted in order to protect public interest and therefore even if the State has not filed an affidavit or the affidavit filed is not satisfactory, the court cannot abdicate its duty of deciding whether the disclosure of the document in question would be injurious to public interest and the document should not therefore be allowed to be disclosed. That is why in England this immunity is no longer described as “Crown Privilege” but is called “public interest immunity”. This aspect of the immunity was emphasized by Lord Reid in Reg v. Lewes Ex parte Home Secretary (1973 AC 388) (supra) where the learned Law Lord observed that the expression ‘Crown Privilege’ is wrong and may be misleading and there is no question of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that the document shall not be produced. Lord Simon of Glaisdale also pointed out in the same case; “Crown privilege is a misnomer and apt to be misleading. It refers to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public interest… it is not a privilege which may be waived by the Crown or by anyone else”, It is therefore clear that if a document is entitled to immunity against disclosure, it cannot be adduced in evidence by either party and even if neither of the parties claims such immunity, the Judge himself must take the objection for the rule that the public interest must not be put in jeopardy by the disclosure of a document which would injure it, is one upon which the courhould, if necessary, insist, even though no objection has been taken by any party or by any government department. In Conway v. Rimmer 1968 AC 910 (supra) Lord Reid said that it is the duty of the Court to prevent the disclosure of a document without the intervention of any minister, “if possible serious injury to the national interest is readily apparent”. In Reg v. Lewes Ex parte Home Secy. 1973 AC 388 (supra) Lord Simon of Glaisdale pointed out that even a litigant or a witness may draw the attention of the Court to the nature of the document with a view to its being excluded Since the immunity is founded on public interest, it is necessary that the court should have the power and the duty to prevent the disclosure of a document when it would be injurious to public interest to disclose it, even if the proper procedure for objection by or on behalf of the minister or the secretary has not been followed. The Court must intervene proprio motu if it appears that the public interest requires the document to be protected from disclosure,
75. This being the correct legal position, it is immaterial whether in the present case appropriate affidavit claiming immunity was filed on behalf of the Union of India. The learned Attorney General sought to tender on an affidavit sworn by Burney, the then Secretary to the Home and Judiciary Department claiming immunity against disclosure in respect of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India in regard to the non-appointment of S.N. Kumar but since the affidavit was sworn on 7-9-1981 and yet not tendered until 16-9-1981 even though the arguments had begun long back, we expressed our displeasure at the delay in filing the affidavit whereupon the learned Attorney General stated that he would not rely upon the affidavit. Thereafter when the learned Counsel for S.N. Kumar sought answers to certain querries in regard to this correspondence, the learned Attorney General filed an affidavit sworn by T.N. Chaturvedi, Secretary to the Home and Judiciary Department claiming protection against disclosure of this correspondence, strong objection was taken to the filing of this affidavit by the learn-ed counsel on behalf of the petitioners ana S.N. Kumar on the ground that the learned Attorney General having made a statement that he would not rely upon previous affidavit, it was not competent and in any event not proper (or the Union of India to file trie affidavit of T.N. Chaturvedi which was almost in the same terms as the previous affidavit. But we overruled this objection, because, as would be clear from what we have discussed above, even if no affidavit were filed earlier on behalf of the Union of India claiming immunity against disclosure, the Union of India could always file an affidavit claiming such immunity at any stage before the claim for immunity was considered and decided by the court -and once the claim for immunity was raised the court could also on its own direct the Union of India to file a proper affidavit, if no such affidavit were already filed. We therefore took the affidavit of T.N. Chaturvedi on file and allowed the Union of India to rely upon it. We may point out that even if this affidavit had not been filed, the Court would still have had to consider on the basis of the other material before it including the nature of the correspondence whether its disclosure would be injurious to public interest and hence it should not be allowed to be disclosed.
76. We may also point out that we were invited to inspect for ourselves the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India for the purpose of deciding whether that correspondence was entitled to immunity against disclosure. Now the view taken in Sodhi Sukhdev Singh’s case was that where an objection is raised against the disclosure of a document under Section 123, the Court has no power to inspect the document under Section 162 for the purpose of deciding the ob-jectien. But with the greatest respect to the learned Judges who decided that case, we do not think this view is correct and in fact subsequent decisions of this Court seem to be against it. So far as English Law is concerned it is now well-settled as a result of the decision of the House of Lords in Conway v. Rimmer 1968 AC 910 (supra) that there is a residual power in the Court to inspect the document. If the Court finds it necessary to do so for the purpose of deciding whether on balance the disclosure ef the document would causa greater injury to public Interest than its non-disclosure. Vide Conway v. Rimmer (supra) at pages 953, 979, 981 and 993. This residual power of the Court to inspect the document has also be recognised in Australian Law by the decision of the High Court of Australia in Sankey v, Whitlam (21 Aus. L.R. 505). We do not see any reason why under Indian Law the Court should be denied this residual power to inspect the document. It 19 true that under Section 162 the Court cannot inspect the document if it relates to affairs of Stale, but this bar comes into operation only if the document is established to be one relating to affairs of State. If, however, there is any doubt whether the document does relate to affairs of State, the residual power which vests in the Court to inspect the document for the purpose of determining whether the disclosure of the document would be injurious to public interest and the document is therefore one relating to affairs of State, is not excluded by Section 162. This Court in fact held in no uncertain terms in Raj Narain’s case (supra) where an objection against the disclosure of the Blue Book was taken on behalf of the State under Section 123, that if the Court was not satisfied with the affidavit objecting to the disclosure of the document, the Court may inspect the document. Ray, C.J, observed at two places while dealing with the objection against the disclosure of the Blue Book under Section 123 that “If the Court would yet like to satisfy itself, the Court may see the document. This will be the inspection of the document by the Court,” and “If the Court in spite of the affidavit wishes to inspect the document, the Court may do so.” Mathew, J. also pointed out that in Amarchand Butail v. Union of India this Court inspected the document in order to see whether it related to affairs of State, There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under Section 123, the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in tha particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought. Since, in the present case, the affidavit of T.N. Chaturvedi claiming immunity against disclosure wade at a late stage of the proceedings and the claim for immunity was in respect of a new class of documents which has so far not come up for judicial consideration and we were in doubt, even after considering the affidavit, whether the correspondence whose disclosure was sought on behalf of the petitioners and S.N. Kumar was of such a character that its disclosure would, on an overall view after weighing the two aspects of public interest referred to above, be injurious to public interest, we inspected the correspondence for ourselves for tha purpose of deciding whether or not it should be ordered to be disclosed.
77. Now as we have already pointed out above, it is for the court to decide the claim for immunity against disclosure made under Section 123 by weighing the competing aspects of public interest and deciding which, in the particular casa before the court, predominates, Tha court is not bound by the affidavit made by the minister or the secretary be-cause the minister or the secretary would be concerned primarily and almost exclusively with the assertion of tha public interest which would be injured by the disclosure of the document and he would have very little concern, if at all, with the public interest in the fair administration of justice and in fact he would not be in a position to appreciate and assess the relative importance of the two competing public interest so as to be able to judge as to which in the particular case before the Court should be allowed to prevent. What should be tha relative weight to be attached to each aspect of public interest is a question which the court would be best qualified to decide and not the minister or the secretary. That is why in Conway v. Rimmer 1968 AC 910 (supra) Lord Reid, while rejecting the notion that a minister’s claim of immunity was conclusive, pointed out at page 943 that the minister who withholds production of a document has no duty to consider the degree of public interest involved in a particular case in frustrating the due administration of justice, it not mattering to the minister at all whether the result of withholding the document would merely be to deprive a litigant of some evidence on a minor issue in a case of little importance or on the other hand, to make it impossible to do justice in a case of the greatest importance. The court would of course consider the affidavit made by the minister or the secretary and give it due weight and importance, but ultimately it is the court which will have to determine which aspect of public interest must prevail and whether the claim for immunity against disclosure should be upheld or not. This was most felicitously expressed by Lord Radcliffe in the Scottish appeal of Glasgow Corporation v. Central Land Board 1956 SC (HL) 1 (supra) where the learned Law Lord said:
The power reserved to the court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in .reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the Courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the court would be better qualified than minister to measure the importance of such principles in application to the particular case that is before it.
Mathew, J, also observed to the same effect in his concurring opinion in Raj Narain’s case (supra):
The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.
The court will therefore have to put in the scales against the injury to public interest which may be caused by this closure of the document, the likely injury to the cause of injustice by non-disclosure and both will have to be assessed and weighed and it will have to -be determined on which side the balance tilts.
78. Now obviously the weight of the likely injury to the cause of justice will vary according to the nature of the proceeding in which the disclosure is sought, the relevance of the document and the degree of likelihood that the document will be of importance in the litigation, The particular nature of the proceeding and the importance of the document in the determination of the issues arising in it are vital considerations to be taken into account in determining what are the relevant aspects of public interest which are to be weighed and what is the outcome of that weighing process. Perhaps the most striking example of the way in which the nature of the case will bear upon the judicial process of weighing aspects of public interest is afforded by the well recognised rule that where a document is necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, it must be disclosed whatever be the nature of the document, because, as observed by Lord Simon of Glaisdale in D. V. National Society for the Prevention of Cruelty to Children (1977) 2 WLR 201 (207) “the public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest” which might be injured by the disclosure of the document. Lord Keith also emphasized the necessity of taking the particular nature of the proceeding into account in the balancing process, when he said in Glasgow Corporation v, Central Land Board 1956 SC (HL) 1 (supra) that “everything must depend on the particular circumstances of the case. It is impossible to lay down broad and general rules.” So also a Sankey v. Whitlam (supra) the High Court of” Australia pointed out that the character of the proceeding in which the claim for immunity against disclosure is raised and the importance of the document in the determination of the issues arising in the proceeding are of extreme relevance in deciding which way the balance of public interest lies. There, the question was whether in a proceeding alleging offences against Mr. Whitlam, a former Prime Minister and others, certain papers and documents which wear relevant the issues arising in the proceeding were entitled to public interest immunity so as to be protected against disclosure. The High Court of Australia negatived the claim for immunity and in the course of his judgment, Stephen, J. laid the greatest stress on the character of the proceeding and pointed out its triple significance in the determination of the claim:
First, it makes it very likely that, for the prosecution to be successful, its evidence must include documents of a class hitherto regarded as undoubtedly the subject of Crown privilege. But then to accord privilege to such documents as a matter of course is to come close to com furring immunity from conviction upon those who may occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices. Those in whom resides the power ultimately to decide whether or not to claim privilege will in fact be exercising a far more potent powers by a decision to claim privilege dismissal of the charge will be well-nigh ensured, Secondly, and assuming for the moment that there should prove to be any substance in the present charges, their character must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case. Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges; inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it. Thirdly, the high offices which were occupied by those charged and the nature of the conspiracies sought to be attributed to them in those offices must make it a matter of more than usual public interest that in the disposition of the charges the course of justice be in no way unnecessarily impeded. For such charges to have remained pending and unresolved for as long as they have is bad enough; if they are now to be met with a claim to Crown privilege, invoked for the protection of the proper functioning of the executive government, some high degree of public interest for non-disclosure should be shown before the privilege should be accorded.
The nature of the proceeding in which the claim for immunity arose was regarded as an important factor influencing the decision of the Court in rejecting the claim and ordering production of the documents. It would thus seem clear that in the weighing process which the court has to perform in order to decide which of the two aspects of public interest should be given predominance, the character of the proceeding, the issues arising in it and the likely effect of the documents on the determination of the issues must form vital considerations, for they would affect the relative weight to be given to each of the respective aspects of public interest when placed in the scales,
79. Bearing these observations in mind, we must now proceed to examine the claim for immunity against disclosure in respect of the correspondence between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India in regard to non-appointment of S.N. Kumar. It was a class immunity which was claimed in respect of this correspondence and the protected class was said to consist of correspondence between the Law Minister or other high level functionary of the Central Government the Chief Justice of the High Court, the Chief Minister or the Law Minister of the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court Judge or a Supreme Court Judge or transfer of a High Court Judge and the nothings made by these constitutional functionaries in that behalf. The argument was that the documents belonging to this class are immune from disclosure, irrespective of their contents, because it is in national interest and also necessary for maintaining the dignity of the judiciary and preserving the confidence of the people in the integrity of the judicial process that documents belonging to this class should be withheld from disclosure. Now there are a few prefatory remarks we would like to make before embarking upon an examination of this argument. In the first place, it is necessary to bear in mind that the burden of establishing a claim for class immunity is very heavy on the person making the claim. Lori Reid pointed out in Eeg. v. Lewes Justices, Ex Parte Home Secy. 1973 AC 388 (supra) that the speeches in Conway v. Rimmer 1968 AC 910 (supra) made it clear that there is a heavy burden of proof on any authority which makes a claim for class immunity. The claim for class immunity is an extraordinary claim because it is based not upon the contents of the document in question but upon its membership of a class whatever be its contents and therefore the court should be very slow in upholding such a broad claim which is contradictory, if not destructive, of the concept of open government. Secondly, it is true, as pointed out earlier, that classes of documents to which the immunity may be accorded are not closed and in the life of a fast changing society rapidly growing and developing under the impact of vast scientific and technological advances new class or classes of documents may come into existence to which the immunity may have to be granted in public interest, but that should only be as a highly exceptional measure. It is only under the severest compulsion of the requirement of public interest that the court may extend the immunity to any other class or classes of documents and in the context of our commitment to an open government with the concommitant right of the citizen to know what is happening in the government, the court should be reluctant to expand the classes of documents to which immunity may be granted. The court must on the contrary move in the direction of attenuating the protected class or classes of documents, because by and large secrecy is the badge of an authoritarian government. We may point out once again, though it be at the cost of repetition, that even in regard to documents belonging to the class which has been judicially recognised as entitled to immunity, the law must now be taken to be well-settled that the immunity is not absolute. The public interest in nondisclosure of a document belonging to this class may in an appropriate case yield to the public interest that in the administration of justice, the court should have the fullest possible access to every relevant document and in that event, the document would be liable to be disclosed even though it belongs to the protected class. The executive cannot by merely invoking the scriptural formula of class immunity defeat the cause of justice by withholding a document which is essential to do justice between the parties, for otherwise the doctrine of class immunity would become a frightful weapon in the hands of the executive for burying its mistakes, covering up inefficiencies and sometimes even hiding its corruption. Every claim for immunity In respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the court with reference to one and only one test, namely, what does public interest require — disclosure or non-disclosure. The doctrine of class immunity is therefore no longer impregnable; it does not any more deny judicial scrutiny, it is no more a mantra to which the court pays obeisance, Whenever class immunity is claimed in respect of a document, the Court has to weigh in the scales the one aspect of public interest which requires that the document should not be disclosed against the other that the court in performing its functions should not be denied access to relevant document and decide which way the balance lies. And this exercise has to be performed in the context of the democratic ideal of an open government.
80. If we approach the problem before us in the light of these observations, it will be clear that the class of documents consisting of the correspondence exchanged between the Law Minister or other high level functionary of the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court Judge or Supreme Court Judge or the transfer of a High Court Judge and the notes made by these constitutional functionaries in that behalf cannot be regarded as a protected class entitled to immunity against disclosure. It is undoubtedly true that appointment or non-appointment of a High Court Judge or a Supreme Court Judge and transfer of a High Court Judge are extremely important matters affecting the quality and efficiency of the judicial institution and it is therefore absolutely essential that the various constitutional functionaries concerned with these matters should be able to freely and frankly express their views in regard to these matters, But we do not think that the candour and frankness of these constitutional functionaries in expressing their views would be affected if they felt that the correspondence exchanged between them would be liable to be disclosed in a subsequent judicial proceeding. The constitutional functionaries concerned in this exercise are holders high constitutional offices such as the Chief Justice of a High Court and the Chief Justice of India and it would not be fair to them to say that they are made of such weak stuff that they would hesitate to express their views with complete candour and frankness if they apprehend subsequent disclosure. We have no doubt that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would not be deterred from performing their constitutional duty of expressing their views boldly and fearlessly even if they were told that the correspondence containing their views might subsequently be disclosed, If, to quote the words of Lord Pearce in Conway v. Rimmer 1968 AC 910 (supra) “there are countless teachers at schools and universities, countless employers of labour, who write candid reports, unworried by the outside chance of disclosure” here is no reason to suspect that high level constitutional functionaries like the Chief Justice of a High Court and the Chief Justice of India would flinch and falter in expressing their frank and sincere views when performing their constitutional duty. We have already dealt with the argument based on the need for candour and frankness and we must reject it in its application to the case of holders of high constitutional offices like the Chief Justice of a High Court and the Chief Justice of India. Be it noted — and of this we have no doubt — that our Chief Justices and Judges are made of sterner stuff; they have inherited a long and ancient tradition of independence and impartiality they are by training and experience as also by their oath of office dedicated to the cause of justice administered without fear or favour, affection or ill-will and in fact there is no power on earth which can deflect them from the path of rectitude. They are, to quote the words from the famous verse from Manasollasa jkt}s”k foitrk and fo{kksHkk ;= otr% and we find it difficult to believe that they would not act as Judges but as weak kneed and ef-fete individuals afraid to express their views lest they might come to be known to others and provoke criticism. The Chief Justice of a High Court and the Chief Justice of India would undoubtedly expect confidentiality while expressing their views but that is no ground for upholding a claim for class immunity in respect of the correspondence exchanged been them and the Central Government or the State Government, Confidentiality is not a head of privilege and the need for confidentiality of high level communications without more cannot sustain a claim for immunity against disclosure. Vide Science Research Council v. Nassa (1979) 3 All ER 673 and particularly the observations of Lord Scarman at pp. 697 and 698. Even if a document be confidential, it must be produced, notwithstanding its confidentiality, if it is necessary for fairly disposing of the case, unless it can be shown that its disclosure would otherwise be injurious to public interest.
81. Now we fail to see how in cases of this kind where non-appointment of an additional Judge for a further term or transfer of a High Court Judge is challenged, the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant nothings made by them, could at all be said to be injurious to public interest. We have already pointed out above that so far as non-appointment of an additional Judge for a further term is concerned, the only two grounds on which the decision not to appoint can be assailed are: firstly, that there was no full and effective consultation by the Central Government with the Chief Justice of the High Court, the State Government and the Chief Justice of India before reaching the decision and secondly, that the decision is mala fide or based on irrelevant considerations, Now obviously these two grounds cannot be made good by a petitioner unless the correspondence between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant nothings made by them are disclosed, for they alone would furnish the relevant evidence showing whether these two grounds are satisfied or not. These documents would show or at least shed light on the question whether there was full and effective consultation between the Central Government on the one hand and the Chief Justice of the High Court, the State Government and the Chief Justice of India on the other, because, as already pointed out by us, such consultation would ordinarily be in writing–as it ought to be–and they would also, in cases where such consultation has taken place, indicate the reasons which have weighed with the Central Government in reaching its decision. Apart from these documents, there would be no other documentary evidence available to the petitioner to establish that there was no full and effective consultation or that the decision of the Central Government was based on irrelevant considerations and if an affidavit is made by an appropriate authority of the Central Government or by the Chief Justice of the High Court or by the Chief Justice of India stating that every relevant aspect of the question was discussed and there was full and effective consultation, it would be well-nigh impossible for the petitioner to successfully challenge the decision of the Central Government, It is only through these documents that the petitioner can, if at all, hope to show that there was no full and effective consultation by the Central Government with the Chief Justice of the High Court, the State Government and the Chief Justice of India or that the decision of the Central Government was mala fide or based on irrelevant grounds and therefore, to accord immunity against disclosure to these documents would be tantamount to summarily throwing out the challenge against the discontinuance of the additional Judge. It would have the effect of placing the Union of India, whose decision is challenged, in an unassailable –almost invincible position where it can, by claiming class immunity in respect of these documents, ensure the rejection of the writ petition, The harm that would be caused to the public interest in justice by the non-disclosure of these documents would in the circumstances far outweigh the injury which may possibly be caused by their disclosure, because the nondisclosure would almost inevitably result in the dismissal of the writ petition and consequent denial of justice even though the claim of the petitioner may be true and just. Moreover, it may be noted that the discontinuance of an additional Judge by the Central Government is a serious matter and if such discontinuance is mala fide or based on irrelevant grounds, it would tend to affect the independence of the judiciary and it is therefore necessary in order to maintain public confidence in the independent functioning of the judiciary that the people should know whether the constitutional requirements were complied with before the decision was taken not to continue the additional Judge and whether any oblique motivations or irrelevant considerations influenced the Central Government leaching that decision. The charge against the Central Government in the first group of present writ petitions was that there was no full and effective consultation with the Chief Justice of India before the decision was reached by the Central Government in regard to S.N. Kumar and in any event, the decision of the Central Government was actuated by oblique or improper motives. This was a serious charge against the Central Government and there can be no doubt that it would be very much in public interest that the necessary documents throwing light on the truth or otherwise of this charge should be disclosed, so that the full facts may be known to the public and the doubts raised and entertained about the influence of extraneous factors in the case of S.N. Kumar should be resolved and removed. It is significant to note that had there not been disclosure of these documents, a certain doubt or misgiving would have continued to prevail in the public mind that the decision to discontinue S.N. Kumar as an additional Judge was taken by the Central Government without full and effective consultation of the ‘Chief Justice of India and that this decision was motivated by oblique or irrelevant considerations. But, as we shall presently point out these documents when disclosed helped to clear this doubt and remove this misgiving by explaining to the people what were the true facts behind the decision to discontinue S.N. Kumar as an additional Judge. Furthermore, it may be noted that when the charge against the Central Government is that it has discontinued S.N. Kumar as an additional Judge for oblique or improper reasons and there by sought to interfere with the independence of the judiciary, it would be singularly inappropriate to exclude these documents which constitute the only evidence, if at all for establishing this charge, by saying that the disclosure of these documents would impair the efficient functioning of the judicial institution. The interest of the wider community in getting to the bottom of this charge is so great that it cannot be allowed to be impeded by a mere rule of evidence. Nor can the decision to admit or exclude be safely left to the Central Government which is itself charged with wrongful or improper conduct.
82. These self-same reasons must apply equally in negativing the claim for immunity in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant nothings made by them in regard to the transfer of a High Court Judge including the Chief Justice of a High Court. These documents are extremely material for deciding whether there was full and effective consultation with the Chief Justice of India before effecting the transfer and the transfer was made in public interest, both of which are, according to the view taken by us, justifiable issues and the non-disclosure of these documents would seriously handicap the petitioner in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It would become almost impossible for the petitioner, without the aid of these documents to establish his case, even if it be true. Moreover, the transfer of a High Court Judge or Chief Justice of a High Court is a very serious matter and if made arbitrarily or capriciously or by way of punishment or without public interest motivation, it would erode the independence of the judiciary which is a basic feature of the Constitution and therefore when such a charge is made, it is in public interest that it should be fully investigated and all relevant documents should be produced before the Court so that the full facts may coma before the people, who in a democracy are the ultimate arbiters. It would be plainly contrary to public interest to allow the inquiry into such a charge to be baulked or frustrated by a claim for immunity in respect of documents essential to the inquiry. It is also important to note that when the transfer of a High Court Judge or Chief Justice of a High Court is challenged, the burden of showing that there was full and effective consultation with the Chief Justice of India and the transfer was effected in Public interest is on the Union of India and it cannot withhold the relevant documents in its possession on a plea of immunity and expect to discharge this burden by a mere statement in an affidavit Besides, if the reason for excluding these documents is to safeguard the proper functioning of the higher organs of the State including the judiciary, then that reason is wholly, inappropriate where what is charged is the grossly improper functioning of those very organs. It is therefore obvious that, in a proceeding where the transfer of a High Court Judge or Chief Justice of a High Court is challenged, no immunity can be claimed in respect of the correspondence exchanged between the Law Minister and the Chief Justice of India and the nothings made by them, since, on the balance, the non-disclosure of these documents would cause greater injury to public interest than what may be caused by their disclosure.
83. But, quite apart from these considerations, we do not understand how the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court the State Government and the Chief Justice of India and the relevant notes made by them in regard to non-appointment of an additional Judge for a further term or transfer of High Court Judge can be detrimental to public interest. It was argued by the learned Solicitor General on behalf of the Union of India that if the Chief Justice of the High Court and the Chief Justice of India differ in their views in regard to the suitability of an additional Judge for further appointment, the disclosure of their views would cause considerable embarrassment because the rival views, might be publicly debated and there might be captious and un-informed criticism which might have the effect of undermining the prestige and dignity of one or the other Chief Justice and shaking the confidence of the people in the administration of justice. If the difference in the views expressed by the Chief Justice of the High Court and the Chief Justice of India becomes publicly known, contended the learned Solicitor General, it might create a difficult situation for the Chief Justice of the High Court vis-a-vis the Chief Justice of India and if despite the adverse opinion of the Chief Justice of the High Court, the additional Judge is continued for a further term, and the additional Judge knows that he has been so continued overruling the view of the Chief Justice of the High Court, it might lead to a certain amount of friction which would be detrimental to the proper functioning of the High Court. So also if an additional Judge is continued for a further term accepting the view expressed by the Chief Justice of the High Court and rejecting the opinion of the Chief Justice of India, it would again create a piquant situation because it would affect the image of the Chief Justice of India in the public eyes. Moreover, a feeling might be created in the mind of the public that a person who was regarded as unsuitable judicial appointment by one or the other of the two Chief Justices, has been appointed as a Judge and the litigants would be likely to have reservations about him and the confidence of the people in the administration of justice would be affected. The learned Solicitor General contended that for these reasons It would be injurious to public interest to disclose the correspondence exchanged between the Law Minister, the Chief Justice of the High Court and the Chief Jus-lice of India.
84. We have given our most anxious thought to this argument urged by the learned Solicitor General, but we do not think we can accept it. We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. There might be difference of views between the Chief Justice of the High Court and the Chief Justice of India but so long as the views are held bona fide by the two Chief Justices, we do not see why they should be worried about the disclosure of their views? Why should they feel embarrassed by public discussion or debate of the views expressed by them when they have acted bona fide with the greatest care and circumspection and after mature deliberation. Dr. Judges sitting in a Division Bench not differ from each other in assessment of evidence and reach directly contrary conclusions on questions of fact? Do they not express their judicial opinions boldly and fearlessly leaving it to the jurists to decide which of the two differing opinions is correct? If two Judges do not feel any embarrassment in coming to different findings of fact which may be contrary to each other, why should two Chief Justices feel embarrassed if the opinions given by them in regard to the suitability of an additional Judge for further appointment differ and such differing opinions are made known to the public. Not only tolerance but acceptance of bona fide difference of opinion is a part of judicial discipline and we find it difficult to believe that the disclosure of their differing opinions might create a strain in the relationship between the Chief Justice of the High Court and the Chief Justice of India. We have no doubt that, the Chief Justice of the High Court would come is own independent opinion on the material before him and he would not surrender his judgment to the Chief Justice of India, merely because the Chief Justice of India happens to be head of the judiciary having a large voice in the appointment of Judges on the Supreme Court Bench. Equally we are confident that merely because the Chief Justice of the High Court has come to a different opinion and is not prepared to change that opinion despite the suitability of the Chief Justice of India, no offence would be taken by the Chief Justice of India and he would not harbour any feeling of resentment against the Chief Justice of the High Court, Both the Chief Justices have trained judicial minds and both of them would have the humility to recognise that they can be mistaken in their opinions. We do not therefore see any real possibility of estrangement or even embarrassment for the two Chief Justices, if their differing views in regard to the suitability of an additional Judge for further appointment are disclosed. We also find it difficult to agree that if the differing views of the two Chief Justices become known to the outside world, the public discussion and debate that might ensue might have the effect of lowering the dignity and prestige of one or the other of the two Chief Justices. When the differing views of the two Chief Justices are made public as a result of disclosure, there would certainly be public discussion and debate in regard to those views with some criticizing one view and some criticizing the other, but that cannot be helped in a democracy where the right of free speech and expression is a guaranteed right and if the views have been expressed by the two Chief Justices with proper care and deliberation and a full sense of responsibility in discharge of a constitutional duty, there is no reason why the two Chief Justices should worry about public criticism. We fail to see how such public criticism could have the effect of undermining the prestige and dignity of one or the other Chief Justice. So long as the two Chief Justices have acted honestly and bona fide with full consciousness of the heavy responsibility that rests upon them in matters of this kind, we do not think that any amount of public criticism can affect their prestige and dignity. But if either of the two Chief Justices has acted carelessly or improperly or irresponsibly or out of oblique motive, his view would certainly toe subjected public criticism and censure and that might show him in poor light and bring him down in the esteem of the people, but that will be the price which he will have to pay for his remissness in discharge of his constitutional duty, No Chief Justice or Judge should be allowed to hide his improper or irresponsible action under the cloak of secrecy. If any Chief Justice or Judge has behaved improperly or irresponsibly or in a manner not befitting the high office he holds, there is no reason why his action should not be exposed to public gaze. We believe in an open Government and openness in Government does not mean openness merely in the functioning of the executive arm of the State. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers. Today the process of judicial appointments and transfers is shrouded in mystery. The public does not know how Judges are selected and appointed or transferred and whether any and if so what, principles and norms govern this process. The exercise of the power of appointment and transfer remains a sacred ritual whose mystery is confined only to a handful of high priests, namely, the Chief Justice of the High Court, the Chief Minister of the State, the Law Minister of the Central Government and tha Chief Justice of India in case of appointment or non-appointment of a High Court Judge and the Law Minister of the Central Government and the Chief Justice of India in case of appointment of a Supreme Court Judge or transfer of a High Court Judge. The mystique of this process is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot therefore be ruled cut that howsoever highly placed may be these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off. We do not see any reason why this process of appointment and transfer of Judges should be regarded as so sacrosanct that no one should be able to pry into it and it should be protected against disclosure at all events and in all circumstances. Where it becomes relevant in a judicial proceeding, why should the Court and tha opposite party and through them the people not know what are the reasons for which a particular appointment is made or a particular additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding, In fact, the possibility of subsequent disclosure would act a an effective check against carelessness, impetuosity, arbitrariness or mala fides on the part of the Central Government, the Chief Justice of the High Court and the Chief Justice of India and ensure bona fide and correct approach, objective and dispassionate consideration, mature thought and deliberation and proper application of mind on their part in discharging their constitutional duty in regard to appointments and transfers of Judges. It is true that if the views ex-pressed by the Chief Justice of the High Court and the Chief Justice of India in regard to the suitability of an additional Judge for further appointment become known to the public, they might reflect adversely on the competence, character or integrity of the additional Judge, but the additional Judge cannot legitimately complain about it, because it would be at his instance that the disclosure would be ordered and the views of the two Chief Justices made public. If the additional Judge is appointed for a further term either accepting the opinion expressed by the Chief Justice of the High Court in preference to that of the Chief Justice of India or vice versa, the question of disclosure of differing opinions of the two Chief Justices would not arise, because no one would know that the two Chief Justices were not agreed on continuing the additional Judge for further term and therefore, ordinarily, there would be no challenge to the appointment of the additional Judge, It is only if the additional Judge is not continued for a further term that he or some one on his behalf may challenge the decision of the Central Government not to continue him and in that event, if he asks for disclosure of the relevant correspondence embodying the views of the two Chief Justices, and if such disclosure is ordered, he has only himself to thank for it and in any event, in such a case, there would be no harm done to public Interest if the views expressed by the two Chief Justices become known to the public.
85. We are therefore of the view that (in the two groups of writ petitions which before us, the injury which would be caused to the public interest in administration of justice by non-disclosure of the correspondence between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India and the relevant nothings made by them in regard to non-appointment of S.N. Kumar and the correspondence between the Law Minister and the Government of India and the relevant nothings made by them in regard to transfer of the Chief Justice of Patna, far outweighs the injury which may, if at all, be caused to the public interest by their disclosure and hence these documents were liable to be disclosed in response to the demand of the learned Counsel appearing on behalf of the petitioners and S.N. Kumar. These were the reasons for which we directed by our Order dated 16th Oct., 81 that these documents be disclosed to the petitioners and S.N. Kumar, Facts of S.N. Kumar’s Case I Whether full & Effective consultation.
86. That takes us to the next question as to whether there was full and effective consultation between the President which means the Central Government on the one hand and the Chief Justice of India on the other, Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, We have already rejected the contention urged on behalf of the respondents that the requirement of consultation is necessary only where a person is being appointed a Judge of the High Court and not where a decision is taken not to appoint him. We have, of course, made it clear that where the name of a person is proposed for appointment as a Judge of the High Court for the first time, he. having no right to be considered for such appointment, is not entitled to insist that the proposal for his appointment, whether initiated by the Chief Justice of the High Court or the State Government or the Chief Justice of India, should be subjected to the process of consultation set out in Article 217 and his name can be dropped without any such consultation. But, as pointed out by us in an earlier portion of the Judgment, the position is different in case of sin additional Judge, for though an additional Judge has no right, on the expiration of his term, to be appointee additional Judge for a further term or to be appointed a permanent Judge, he has still a right to be considered for such appointment and the Central Government has to decide whether or not to appoint him after consultation with the three constitutional functionaries mentioned in Article 217. Here, in the present case, Shri S.N. Kumar was an additional Judge whose term expired on 6th June, 1981 and he was entitled to be considered for appointment as an additional Judge for a further term and the Central Government certainly could after considering his name, decide in the bona fide exercise of its power, not to appoint him, but that could be done only after consultation with the three constitutional functionaries specified in Article 217 which included the Chief Justice of India. It therefore becomes necessary to consider whether the Central Government arrived at its decision not to appoint Shri S.N. Kumar as an additional Judge for a further term after consultation with the Chief Justice of India. We have already discussed the true nature and scope of consultation required under Article 217 and pointed out that the consultation contemplated by that Article is full and effective consultation where the relevant facts bearing upon appointment or non-appointment are brought to the notice of the Central Government and the three constitutional functionaries required to be consulted and the opinion of each of the three constitutional functionaries is taken on identical material and then a decision is reached by the Central Government whether or not to appoint the person concerned as a Judge, whether additional or permanent. Now Article 217 does not require that any particular procedure should be followed for full and effective consultation nor does it insist that the relevant facts on which the final decision of the Central Government is based should be conveyed to the other three constitutional functionaries in any particular manner or by the Central Government itself. What is necessary to ensure full and effective consultation within the meaning of Article 217 is that the Central Government as well as each of the three constitutional functionaries required to be consulted “must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision” and it is immaterial as to how such “full and identical facts” are conveyed by one authority to thither. It is sufficient compliance with the constitutional requirement of Article 217 if the self-same facts on which the final decision is taken by the Central Government are placed before each of the three constitutional functionaries required to be consulted and their opinion is taken on the basis of such facts. Whatever be the manner in which those facts are brought to their notice. Let us examine whether in the present case this constitutional requirement was satisfied before the decision was taken by the Central Government not to appoint S.N. Kumar as an additional Judge for a further term or to paraphrase it in the context of the controversy raised on behalf of the petitioners, whether the full and identical facts on which the decision was taken by the Central Government were placed be-fore the Chief Justice of India.
87. The unfortunate drama leading to the non-appointment of S.N. Kumar as an additional Judge for a further term begins with the letter dated 19th February, 1981 addressed by the Chief Justice of Delhi to the Law Minister. This letter was written by the Chief Justice of Delhi to the Law Minister, because the term for which S.N. Kumar was originally appointed as an additional Judge was due to expire on 6th March. 1981. The Chief Justice of Delhi pointed out in this letter that the arrears pending in the Delhi High Court undoubtedly justified the appointment of additional Judges but he was not in a position to recommend the “extension for Justice Kumar” for an additional term for three reasons, namely (1) There were serious complaints against S.N. Kumar both oral and in writing, These complaints had been received by him direct as well as through the Law Minister. He had examined these complaints and ‘found that some of the complaints were not without basis (2) S.N. Kumar had not been very helpful in disposing of cases; and (3) some responsible members of the Bar and some of the colleagues of the Chief Justice (whom he did not think it proper to name) had also expressed doubts about S.N. Kumar’s integrity. The Chief Justice frankly stated that he had no invest gating agency to conclusively find out whether the complaints against S.N. Kumar were genuine or not, but added that “all the same the complaints have been persistent.” He pointed out that in the circumstances it was his painful duty, not to recommend an extension for S.N. Kumar but added that the Law Minister might examine the matter at his Mid and take such steps as he thought proper. Now a suggestion was made by Mr. R.K. Gag, learned advocate appearing on behalf of S.N. Kumar that this letter was addressed by the Chief Justice of Delhi to the Law Minister pursuant to a conspiracy between the two to discontinue S.N. Kumar as an additional Judge. The suggestion was that the Chief Justice of Delhi had played into the hands of the Law Minister and written this letter recommending non-appointment of S.N. Kumar in order to oblige the Law Minister. We are afraid we cannot term this suggestion as anything but unfounded. There is absolutely not a title of evidence in support of such a suggestion. The charge of conspiracy is at all times a very serious charge and it must not be lightly made more particularly when it is directed against persons holding high offices, Here it is difficult to see any justification at all for levelling a charge of conspiracy against the Chief Justice of Delhi and the Law Minister, The Chief Justice of Delhi was appointed acting Chief Justice on 27th June. 1980 and he was confirmed as permanent Chief Justice with effect from 8th January, 1981 and therefore on the date of the letter, his position as Chief Justice was not at all in jeopardy and he was not dependent on the Central Government or the Law Minister for his office. There were also no disputes or differences between the Chief Justice of Delhi and S.N. Kumar prior to the date of the letter and no suggestion has been made on behalf of S.N. Kumar that the Chief Justice of Delhi had any animus or prejudice against him. Nothing had transpired between the Chief Justice of Delhi and S.N. Kumar which might have induced the Chief Justice of Delhi, to make a false allegation or imputation against him. Nor was any reason suggested as to why the Law Minister should have gone out of his way to see that S.N. Kumar was not continued as an additional Judge, It would indeed be going too far to suggest without shred of evidence that the Chief Justice of Delhi was so depraved as to yield to the pressure of the Law Minister and make a deliberately false imputation of lack of integrity against his colleague merely in order to oblige the Law Minister. It is impossible to conceive of any, earthly reason why the Chief Justice of Delhi should have gone to the length of condemning his colleague unless he had received complaints against him and he bona fide believed that some of those complaints were not without basis. The letter dated 19th February, 1981 in fact, contains inherent evidence to show that the Chief Justice of Delhi was acting bona fide in addressing that letter to the Law Minister. He pointed out in the letter that he had received complaints against S.N. Kumar both oral and in writing and on examining these complaints he had found that same of them were not without basis but he frankly stated that he had no investigative machinery at his disposal and it was therefore not possible for him to find conclusively whether these complaints were genuine or not. This was a correct and proper approach to be adopted by a careful and responsible Chief Justice who had heard complaints against his colleague some of which appeared to him not without basis but in respect of which he was not in a position to state definitely whether they were true or not. Since some of the complaints appeared to him not without basis and responsible members of the Bar and some of his colleagues had also complained to him against S.N. Kumar, he naturally thought that it would not be right for him to recommend continuance of S.N. Kumar as an additional Judge, But, at the same time, he made it clear that the Law Minister might examine the matter at his end and take such action as he thought fit. It is impossible to conclude from this letter that the Chief Justice of Delhi acted improperly or irresponsibly in not recommending the continuance of S.N. Kumar as an additional Judge. If what was stated by the Chief Justice of Delhi in this letter were true — and for the purpose of inquiry as to whether there was full and effective consultation, we must accept the facts as given in the letter as true for we are not concerned to inquire whether the facts on which the Chief Justice of Delhi based his opinion were true or not — the Chief Justice of Delhi could not be said to be unjustified in taking the view that S.N. Kumar should not be recommended for continuance as an additional Judge. While making his recommendation whether S.N. Kumar should be continued as an additional Judge or not, the Chief Justice of Delhi had to consider the fitness and suitability of SN. Kumar the time and if there were complaints against S.N. Kumar, some of which he did not find to be without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar and some of his own colleagues, the Chief Justice of Delhi could not be said to have acted unreasonably in declining to recommend S.N. Kumar for an extension. It may be that on full and detailed investigation through an independent and efficient investigative machinery, the complaints and doubts against S.N. Kumar might have been found to be unjustified but such a course would have been neither practicable nor desirable. In the first place, as pointed by the Chief Justice of Delhi himself, he had no investigative machinery at his disposal and if he wanted the complaints and doubts against S.N. Kumar to be investigated, he would have had to ask the Central Government to carry out such investigation through the Central Bureau of Investigation or the Intelligence Bureau or some such investigating agency and that would have been clearly subversive of the independence of the judiciary. It would have been most improper for the Chief Justice of Delhi to ask the Central Government to investigate into complaints or doubts against a sitting Judge of his Court. This Court has in unhesitating terms condemned the adoption of such a course by the High Court in the case of subordinate judiciary and much more so would it be reprehensible in the case of a sitting Judge of a High Court. Moreover, leaving the investigation of complaints and doubts against a sitting Judge in the hands of an investigative agency under the Control of a Political Government would not be desirable because, apart from exposing the sitting Judge to unhealthy political pressures, it may not yield satisfactory result in all cases, because such an Investigation would not have the benefit of the guidance of a mature and experienced person like the Chief Justice who has lived a whole lifetime in the Courts and who is closely and intimately connected with lawyers and Judges in the Court over which he presides, It would Indeed be impossible for any one unfamiliar with the legal profession and the functioning of the Courts to judge the genuineness or veracity of the sources from which information might be obtained in regard to a sitting Judge. It must, therefore, necessarily bad left to the Chief Justice of the High Court to give his opinion in regard to the suitability of an additional Judge for further appointment on the basis of such information as he may gather by, making his own inquiries. The Chief Justice of the High Court would have sufficient opportunities for judging the suitability of an additional Judge for further appointment, because the additional Judge would be working with him in the same Court and he would be in close contact with the members of the Bar and his own colleagues and if there is anything wrong with the functioning of the Court or tha Judges, he would be best in a position to know about it If an additional Judge does not enjoy good reputation for integrity, the Chief Justice of the High Court would ordinarily come to know about it. Of course, the possibility cannot be ruled out that the information received by tha Chief Justice of the High Court may at times be motivated or prejudiced, because the additional Judge has offended some member of the Bar or decided some case against a litigant. These occupational hazards which beset the life of an additional Judge — in fact, even of a permanent Judge whether in the High Court or in the Supreme Court have unfortunately increased in recent times, because there has been a steady erosion of values and not only some interested politicians but also a few — and fortunately their tribe is still small — lawyers and members of the public are prone to make wild and reckless allegations against Judges and impute motives for the decisions given by them. It is not realised by many that very often the judgments given by the High Courts and the Supreme Court are value judgments, because there are conflicting values competing for recognition by the Judge and the choice made by the Judge is largely dictated by his social philosophy and it a not possible to emphatically assert that a particular view taken by one Judge is wrong and a different view taken by and other Judge is right, The nature of the judicial process being what it is, it is inevitable that the view taken by a Judge, perfectly bona fide though it may be, may not accord with the expectations of a section or group of persons believing in a particular social or political philosophy, but that cannot be a ground affording Justification for making imputation against the Judge or accusing him of lack of been fides or charging him with surrender subservience to the executive or to any other interest. Those who indulge in such personal attacks against Judges for the decisions given by them do not realise what incalculable damage they are doing to the judicial institution by destroying the confidence of the public in the integrity and inviolability of administration of justice. Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against Judges in regard to their honesty and integrity and in recent times the tendency has grown to make such allegations against Judges because they have decided the case in a particular manner either against a dissatisfied litigant or contrary to the view held by a group or, section of politicians or lawyers or members of the public. The Judge against whom such allegations are made is defenceless because, having regard to the peculiar nature of the office held by him, he cannot enter the arena of conflict and raise or join a public controversy, This pernicious tendency of attributing motives to Judges has to be curbed, if the judicial institution is to survive as an effective instrument for maintenance of the rule of law in the country and this can happen only if politicians, lawyers and members of the public accept the judgments rendered by the Judges as bona fide expressions of their views and do not impute motives to Judges for the judgments given by them, even though they be adverse to the views held by them. But unfortunately, the situation being what it is, we must emphasise with all the strength and earnestness at our command that the Chief Justice of the High Court should exercise the greatest care and circumspection in judging the veracity of the information which he may receive from time to time in regard to the conduct or behaviour or integrity of an additional Judge of his Court. The Constitution has entrusted to him the task of giving his opinion in regard to the suitability of an Addl. Judge for further appointment and on the basis of the information received by him or gathered as a result of inquiries made by him, he has to decide wisely and with responsibility whether or not he should recommend the appointment of an additional Judge for a further term.
88. Now where the Chief Justice of the High Court is reasonably satisfied after the greatest care and circumspection exercised by him as the holder of a high constitutional office to whom the Constitution has assigned an important function and in whom it has reposed a sacred trust, that the additional Judge in regard to whose suitability he has to give opinion, does not enjoy good reputation for integrity, he obviously cannot recommend such additional Judge for further appointment. It is possible that the Chief Justice of the High Court may go wrong in a given case and arrive at an erroneous opinion in regard to the suitability of an additional Judge for appointment for a further term and that may result in injustice to the additional Judge who may suffer by reason of such erroneous opinion but that cannot be helped because ultimately some constitutional functionary has got to be entrusted with the task of assessing the suitability of the person to be appointed an additional Judge or a permanent Judge and no better person can be found for this purpose than the Chief Justice of the High Court. The Chief Justice of the High Court may err in his assessment as anyone else may, fallibility being the attribute of every human being. But that is a risk which has necessarily to be taken and it cannot be avoided howsoever perfect may be the mechanism which human ingenuity can evolve. It may happen that the Chief Justice of the High Court, not being aware that the additional Judge whose term is about to expire does not enjoy, good reputation for integrity may recommend his name for appointment for a further term though he is clearly unsuitable for such appointment and equally it may happen that on the basis of the information available with him which information may be incorrect, the Chief Justice of the High Court may come to the opinion that the additional Judge whose suitability he is called upon to consider does not possess good reputation for integrity though in fact he is a person of sterling character and possesses a high degree of honesty and integrity. These errors are inevitable in every process of assessment and the Constitution has sought to minimise them by entrusting the task of assessment to a high dignitary like the Chief Justice of the High Court who would be expected to act with a high sense of responsibility and, who by reason of training and experience, would be able to sift the grain from the chafed arrive at a correct opinion on the material before him.
89. We might also at this stage refer to one contention seriously pressed on behalf of the petitioners, namely, that what would be material to consider for the purpose of assessing the suitability of an additional Judge for further appointment would be not whether the additional Judge enjoys good reputation for honesty and integrity but whether in fact he possesses honesty and integrity. The argument of the petitioners was that if the additional Judge has the hall-mark of honesty and integrity “he cannot be removed or dropped because unconfirmed reports say that he is lacking in honesty and integrity”, for otherwise “the reputation of every Judge would be at the mercy of rumours, gossips and unconfirmed reports”. We do not think this argument is well founded. In the first place, it must be remembered that when the Chief Justice of the High Court is called upon to give his opinion in regard to the suitability of an additional Judge for further appointment, he is not required to adjudicate upon various matters bearing upon his suitability and to come to a definitive finding or conclusion in regard to such matters. Where the complaint against an additional Judge is in regard to his integrity, the Chief Justice of the High Court is not expected to hold a Judicial or quasi-judicial inquiry for the purpose of adjudicating whether the additional Judge is, in fact, lacking in honesty and integrity. Such an .inquiry against a Judge whether additional or permanent would not be permissible except in a proceeding for his removal. What the Chief Justice of the High Court has to do is merely to assess the suitability of the additional Judge for further appointment and where lack of integrity is alleged against him, the assessment can only be on the basis of his reputation for integrity. The point we are making will become abundantly clear if we take the case of a member of the Bar or the senior most District Judge who is for the first time considered for appointment as an additional or permanent Judge. The integrity of the person under consideration would undoubtedly be a relevant factor to be taken into account, but in assessing such factor the Chief Justice of the High Court would not be expected to hold a judicial OF quasi-judicial inquiry for the purpose of determining whether the person concerned does, in fact, possess honesty and integrity or is lacking in these qualities. The Chief Justice of the High Court would have to proceed on the basis of the reputation for honesty and integrity enjoyed by the person under consideration and if, on the basis of the information gathered by him, the Chief Justice of the High Court comes to the view that such person does not enjoy good reputation for integrity, the Chief Justice of the High Court would be justified in not recommending such person for appointment Where a question of honesty and integrity of a Judge is concerned, it is almost impossible to come to a conclusive determination whether he is lacking in integrity or not because experience shows that most persons are not willing to speak if they know that they may be quoted and that in any event they are not prepared to testify in any judicial or quasi-judicial inquiry. It is therefore not enough in order to be able to recommend a person for appointment as a Judge to say that there is no proof of lack of integrity against him, because, if such were the test to be applied, there would be grave danger of persons lacking in integrity being appointed as Judges. The test which must be applied for the purpose of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied about the integrity of person under consideration; If the person under consideration does not enjoy reputation for honesty and integrity, it would not be possible for the Chief Justice of the High Court to say that he is satisfied about the integrity of such person and in such an event, the Chief Justice of the High Court would be justified in not recommending such person for appointment 9 in fact, it would be his duty not to recommend such person. The public injury which may be caused by appointment of a Judge lacking in integrity would be infinitely more than tha public injury which may result from non-appointment of a competent Judge possessing integrity. If therefore the Chief Justice of Delhi found on inquiries made by him that some of the complaints made against S.N. Kumar were not without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar as also by some of his own colleagues, the Chief Justice of Delhi could not be said to be unjustified in writing the letter dated 19th February, 1981 declining to recommend S.N. Kumar for appointment as an additional Judge for a further term. We may once again repeat that this assessment of S.N. Kumar by the Chief Justice of Delhi may have been erroneous and, as we shall point out a little later, the Chief Justice of India took the view that it was erroneous, but on no account can lack of bona fides be attributed to the Chief Justice of Delhi. On the bona fide view taken by him, the Chief Justice of Delhi did what it was his plainest duty in the circumstances to do.
90. There was also one other argument urged on behalf of the petitioners which we might conveniently dispose of at this stage, since it is an argument closely allied to the one which we have just discussed and rejected. The petitioners contended that fair play and justice required that before an additional Judge is dropped on the ground that he is lacking in integrity or that he does not enjoy good reputation for integrity, he must have an opportunity of showing cause against such a serious imputation made against his honour and integrity, This contention is also in our opinion without merit and the answer to it is provided by what we have already discussed above. What the Chief Justice of the High Court is required to do is to give his opinion in regard to the suitability of the additional Judge for further appointment and he has therefore to consider various matters relevant to the question of appointment and give his opinion to the President. He does not hold a judicial or quasi-judicial inquiry into the honour and integrity of the additional Judge nor does he arrive at any conclusive finding or determination. He merely gives his personal opinion in regard to the suitability of the additional Judge in discharge of the constitutional duty laid upon him and there Is there-fore no question of any opportunity being afforded to the additional Judge before the Chief Justice of the High Court arrives at his opinion. When the Chief Justice of the High Court gives Ms opinion, it is a confidential communication which would not ordinarily be known to the public and in the case of S.N. Kumar too, but for the disclosure of documents vehemently pressed and passionate thought not only by the counsel for the petitioners but also by the counsel for S.N. Kumar, the world would never have known that the Chief Justice of Delhi has given an adverse opinion against the continuance of S.N. Kumar on the ground that his integrity was doubtful. It is obvious that in cases of this kind where the Chief Justice of the High Court gives his personal opinion or assessment on consultation by the President, there is neither adjudication nor condemnation and hence there is no basis or justification for importing the requirement of fair play or natural justice.
91. When a copy of this letter dated 19th Feb., 1981 was received by the Chief Justice of India, he took the view that what was stated in the letter was “too vague to accept that Shri Kumar lacks integrity” and he therefore stated in a note dated 3rd Mar., 1981 submitted by him to the Central Government that he “would like to look carefully into the charges against Shri S.N. Kumar” and recommended extension of the term of S.N. Kumar by six months. The reason which prevailed with the Chief Justice of India in recommending extension of the term of S.N. Kumar for six months was twofold. In the first place, he felt that since he had recommended extension of the term of O.N. Vohra by six months and O.N. Vohra was senior to S.N. Kumar, the interests of propriety required that the term of S.N. Kumar should also be extended by six months and secondly, he desired to look carefully into the charges against S.N. Kumar before deciding whether to recommend bus further appointment or not. Now having regard to the scope and purpose of Article 224 which we have discussed in some detail in an earlier portion of this judgment, it is clear that the Chief Justice of India misconceived the true legal position when he recommended extension of S.N. Kumar for a period of six months in order to enable him to look carefully into the charges against S.N. Kumar, We have already pointed out that on a true interpretation of Article 224 no short term appointment of an additional Judge can be made for the purpose of enabling the constitutional authorities to examine and decide whether the complaints or charges against the additional Judge arc justified or not, so that if the complaints or charges are found to be not without basis, the constitutional authorities may advise the Central Government not to anoint the Additional Judge for a further term. We have held that such short term appointment being for a purpose other than that warranted by Article 224, would be outside the scope and ambit of that Article. But even so the Chief Justice of India recommended, though Constitution felly it was impermissible to do so, that the appointment of S.N. Kumar be extended for a further term of six months in order that he should in the meantime be able to examine carefully the charges against S.N. Kumar, The Law Minister thereupon submitted a note to the Prime Minister on 3rd March, 1981 pointing out that the letter of the Chief Justice of Delhi dated 19th Feb., 1981 made a serious complaint against the integrity of S.N. Kumar but he did not propose to go into the merits of the case at that stage since he was suggesting a short extension of three months for S.N. Kumar, But while so staling, he added that he strongly felt that in matters of this nature, “the views of the Chief Justice of the “High Court” are paramount as it is in his association that the Judge concerned discharges his duties” yet “out of sheer reverence to the views of the Chief Justice, of India” he proposed that the term of S.N. Kumar as additional Judge be extended for three months, Thus, while the Chief Justice of India recommended extension of the term of S.N. Kumar for six months, the Law Minister proposed an extension for only three months, presumably because he took the view that whatever inquiries are to be made in regard to the complaints and doubts against S.N. Kumar should be carried out as quickly as possible and the decision on such a sensitive issue as to whether an additional Judge should be continued or not should not be unduly ‘delayed The result was that S.N. Kumar was appointed as an additional Judge for a period of three months from 7th Mar., 1981.
92. The Law Minister thereafter ad-dressed a letter dated 19th Mar., 1981 to the Chief Justice of Delhi drawing his attention to the observations made by the Chief Justice of India in regard to his earlier letter dated 19th Feb., 1981 and requesting him that in the light of those observations he should offer his “further comments on the question of continuance or otherwise” of S.N. Kumar. The Law Minister stated that since the term of S.N. Kumar as an Additional Judge was expiring on 6th June, 1981, he would be grateful if the Chief Justice of Delhi could send his comments so as to reach him latest by 15th April, 1981. This communication addressed by the Law Minister to the Chief Justice of Delhi shows clearly beyond any doubt that the Law Minister was not party to any conspiracy for discontinuing S.N. Kumar as an additional Judge. Since the Chief Justice of India had observed that the letter dated 19th Feb., 1981 addressed by the Chief Justice of Delhi was too vague to form the basis of an opinion that S.N. Kumar was lacking in integrity, the Law Minister naturally asked the Chief Justice of Delhi to offer his further comments in answer to this remark of the Chief Justice of India. It appears that the Chief Justice of India also addressed a letter dated 14th Mar., 1981 to the Chief Justice of Delhi asking him, with reference to the observations made by him in his letter dated 19th Feb., 1981, to furnish “details and concrete facts in regard to the allegations against Justice Kumar”. The Chief Justice of Delhi thereupon met the Chief Justice of India and had discussion with him on 26th March, 1981, There was considerable controversy between the parties as to what were precisely the facts which were discussed between the Chief Justice of Delhi and the Chief Justice of India at this meeting, but the subsequent correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India throws considerable light on this controversy and we must therefore proceed to examine it. It appears that subsequent to this meeting held on 26th Mar., 1981, the Chief Justice of Delhi address-‘ed a letter dated 28th March, 1981 to tha Chief Justice of India recording that since receipt of the letter of the Chief Justice of India dated 14th Mar., 1981, the Chief Justice of Delhi had an opportunity “to discuss this delicate matter” with the Chief Justice of India and observing, to quote the exact words used by Chief Justice of Delhi:
There were three points mentioned in my D.O. 275-HCJ/PPS, dated 19th Feb., 1981, addressed to the Law Minister, a copy of which was forwarded to you. I had also mentioned in that letter that I have no investigating agency to conclusively find out whether the complaints are genuine or not. Understandably there will be some who would support the allegations and there will be some who would refute them. Therefore it is natural that there may be variance between the views that may be expressed by different people. Indeed, my experience is that people are hesitant in speaking out frankly.
With regard to the complaints about Justice Kumar’s integrity and general conduct, the matter has already been discussed between us. About Justice Kumar not being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980. Just by way of comparison I have also included the figures of disposal in the same period of my other two colleagues whose cases for reappointment are under consideration.
The Chief Justice of Delhi also addressed a letter dated 28th March, 1981 to the Law Minister pointing out that since receipt of the letter of the Chief Justice of India, he had an opportunity “to discuss the entire matter in detail with the Chief Justice of India” and that after this discussion he had addressed a letter dated 28th March, 1981 to the Chief Justice of India, a copy of which was being enclosed by him. The Chief Justice of Delhi then proceeded to add in this letter addressed to the Law Minister:
Perhaps you will consider this to be sufficient “comments” on my part as desired by you in your letter under reply about the ‘Observations of the Chief Justice of India which you have quoted in your letter.
Now it is clear from this letter addressed by the Chief Justice of Delhi to the Law Minister that the Chief Justice of India asked the Chief Justice of Delhi to furnish him “Details and concrete facts in regard to the allegations against Justice Kumar” and in response to this request, the Chief Justice of Delhi met the Chief Justice of India on 26th Mar., 1981 and discussed “the entire matter in detail with the Chief Justice of India.” Obviously all “the details and concrete facts” In regard to the allegations against S.N. Kumar which were required by the Chief Justice of India must have been discussed in detail between the Chief Justice of Delhi and the Chief Justice of India at this meeting held on 26th March, 1981, There is no reason to believe that any facts which were in the possession of the Chief Justice of Delhi in regard to the complaints and doubts against S.N. Kumar were not disclosed and discussed him with the Chief Justice of India. There is also inherent evidence in the letter dated 28th March, 1981 addressed by the Chief Justice of Delhi to the Chief . Justice of India that the entire matter relating to the integrity of S.N. Kumar was discussed between the Chief Justice of Delhi and the Chief Justice of India. The Chief Justice of Delhi stated at the commencement of this letter that he had an opportunity to discuss “this delicate matter” with the Chief Justice of India. The reference to “this delicate matter” could not be to any matter other than that relating to the integrity of S.N. Kumar. Then the Chief Justice of Delhi proceeded to state that there were threat points mentioned in his letter dated 19th Feb., 1981 and obviously there was no reason for him to refer to these three points in his letter dated 28th March, 1981 unless he had discussed these three points with the Chief Justice of India. It was with reference to the meeting which the Chief Justice of Delhi had with the Chief Justice of India that the Chief Justice of Delhi adverted to the three points in his letter to the Chief Justice of India, One of the three points was that serious complaints against S.N. Kumar had been received by him direct as well as through the Law Minister and some of these complaints were found to be not without basis and the second point was that some responsible members of the Bar as also some of his own colleagues had expressed doubts about the integrity of S.N. Kumar. These two points must have been discussed between the Chief Justice of Delhi and the Chief Justice of India, for otherwise there is no reason why the Chief Justice of India, and the Chief Justice of Delhi should have referred to them in his letter to the Chief Justice of India and if these two points were discussed, it is difficult to believe that the Chief Justice of Delhi should not have disclosed all the facts bearing upon these two points to the Chief Justice of India. The Chief Justice of Delhi emphatically reiterated in the last paragraph of his letter to the Chief Justice of India that the matter in regard to the complaints against the integrity of S.N. Kumar had already been discussed between them, Now, a stated in the letter of the Chief Justice of Delhi dated 19th February, 1981, complaints against the Integrity of S.N. Kumar were received by the Chief Justice of Delhi direct as also through the Law Minister and doubtgainst the integrity of S.N. Kumar had Men expressed by responsible members of the Bar as also by some of the Judges Of the Delhi High Court and therefore the inference is Irresistible that when the matter in regard to the complaints against the integrity of S.N. Kumar was discussed, these facto must have been disclosed by the Chief Justice of Delhi to the Chief Justice of India. The Chief Justice of India had with him a copy of the letter dated 19th Feb., 1081 where reference was made to complaints against S.N. Kumar, said to have been received by the Chief Justice of Delhi and to doubts against the integrity of S.N. Kumar said to have been expressed by responsible members of the Bar and some of his own colleagues and it is impossible to believe that when the matter relating to the integrity of S.N. Kumar was discussed, the Chief Justice of India should not have asked the Chief Justice of Delhi to apprise him as to what were the complaints received against S.N. Kumar and who were the responsible members of the Bar and Judges who had expressed doubts against the integrity of S.N. Kumar, If the Chief Justice of Delhi refused to disclose these fact to the Chief Justice of India, we have no doubt that the Chief Justice of India would have remonstrated with the Chief Justice of Delhi for such refusal and expressed his displeasure about it to the Law Minister, There is no doubt in our mind that the Chief Justice of Delhi must have disclosed all the facts relating to the complaints and doubts expressed against the integrity of S.N. Kumar to the Chief Justice of India but, as is evident from a subsequent letter dated 22nd May, 1981 addressed by the Chief Justice of India to the Law Minister, the Chief Justice of India had already, prior to the date of the meeting, made his own inquiries in the matter and as a result of such inquiries he was not inclined to agree with the opinion given by the Chief Justice of Delhi and it is obvious therefore that he must have told the Chief Justice of Delhi that in the course of the inquiries made by him he had been told by persons that there was nothing against the Integrity of S.N. Kumar and he was consequently unable to agree with the view expressed by the Chief Justice of Delhi The Chief Justice of Delhi apparently remained unconvinced and that is why he stated in his letter to the Chief Justice of India that there was bound to variance between the views expressed by different persons in regard to the integrity of a Judge, since there would be some who would support the allegations of lade of integrity while there would be some others who would refute them, This was a courteous and respectful way of expressing disagreement with the Chief Justice of India, But, at the same time, the Chief Justice of Delhi politely, yet firmly pointed out to the Chief Justice of India, by way of answer to his view, that experience showed that “persons are hesitant in speaking out frankly” when the question relates to the integrity of a Judge, suggesting clearly that merely because persons questioned by the Chief Justice of India in the course of the inquiries made by him did not choose to say anything against the integrity of S.N. Kumar, it did not necessarily follow that the integrity of S.N. Kumar was above board, This letter addressed by the Chief Justice of Delhi to the Chief Justice of India clearly shows that there was full discussion between the Chief Justice of Delhi and the Chief Justice of India in regard to complaints and doubts against the integrity of S.N. Kumar but at the end of the discussion the Chief Justice of Delhi stuck to his opinion and that is why in the letter addressed by him to the Law Minister, he did not go back upon his refusal to recommend S.N. Kumar for further appointment and maintained his original recommendation not to continue S.N. Kumar for further term, The Chief Justice of Delhi expressed the hope that what he had stated in his letter to the Chief Justice of India would be considered sufficient comments on his part in regard to the observations of the Chief Justice of India quoted in the letter of the Law Minister dated 19th March, 1081, The criticism of the Chief Justice of India voiced in that letter was that what was stated by the Chief Justice of Delhi in his letter dated 19th February, 1981 was vague and the Chief Justice of Delhi therefore pointed out to the Law Minister that he had discussed the entire matter in detail with the Chief Justice of India and met his objection and hence there was no question of any vagueness and he therefore hoped that his reply would be sufficient answer to the observations of the Chief Justice of India. The effect and substance of what the Chief Justice of Delhi stated in his letter to the Law Minister was that he had cleared the charge of vagueness by discussing all thatch in regard to the allegations against S.N. Kumar with the Chief Justice of India.
93. This was followed by a letter dated 15th April, 1981 addressed by the Law Minister to the Chief Justice of Delhi, We have already pointed out that since what was stated in the letter of the Chief Justice of Delhi dated 19th February, 1981 was vague, the Law Minister had, by his letter dated 19th March, 1981 requested the Chief Justice of Delhi to offer further comments in support of his recommendation against the discontinuance of S.N. Kumar. The only reply which the Law Minister got from the Chief Justice of Delhi was that the ‘Chief Justice of Delhi had met and discussed the entire matter in detail with the Chief Justice of India and removed the objection based on vagueness by giving him “details and concrete facts” in regard to the allegations against S.N. Kumar. But the Law Minister was not informed as to what was discussed between the Chief Justice of Delhi and the Chief Justice of India and what were the “details and concrete facts” disclosed by him to the Chief Justice of India. It was obvious from the reply given by the Chief Justice of Delhi that despite the discussion with the Chief Justice of India he stuck to his original recommendation not to continue S.N. Kumar for a further term and the Law Minister therefore naturally enquired from him by his letter dated 15th April, 1981 as to what was the material which provided the basis on which he concluded that S.N. Kumar’s reputation for integrity was not above board and recommended that he may not be continued. Ultimately, it was the Law Minister who had to take a decision on behalf of the Government of India as to whether S.N. Kumar should be continued or not and in order to be able to discharge this constitutional function fairly and honestly, it was necessary for the Law Minister to know what was the material on the basis of which the Chief Justice of Delhi had reached the opinion that S.N. Kumar did not enjoy good reputation for integrity and that he could not therefore be recommended for reappointment. The Law Minister obviously could not accept the opinion of the Chief Justice of Delhi blindly and unquestioningly because that would have amounted to abdication of his constitutional obligation and he therefore asked the Chief Justice of Delhi to furnish him the material on which the opinion of the Chief Justice of Delhi was based. This letter addressed by the Law Minister to the Chief Justice of Delhi provides the clearest evidence that tha Law Minister was not a party to any conspiracy to throw out S.N. Kumar as an additional Judge. The Law Minister if ha was a party to any such conspiracy, would not have required the Chief Justice of Delhi to provide the material which formed the basis of his opinion and instead, he would have accepted the opinion of tha Chief Justice of Delhi and after formally inviting the opinion of the Chief Justice of India, decided to discontinue S.N. Kumar. But, obviously, the Law Minister wanted to satisfy himself that them was material on the basis of which it could be said that the integrity of S.N. Kumar was doubtful, and that is why ha did not regard it as sufficient that tha Chief Justice of Delhi had discussed tha matter with the Chief Justice of India but asked for the material which formed the basis of the opinion of the Chief Justice of Delhi so that the Central Government could come to its own decision whether or not to continue S.N. Kumar as an additional Judge. This action on the part of the Law Minister clearly establishes his bona fides in the matter of discontinuance of S.N. Kumar.
94. Now we come to a very important letter which formed the subject matter of bitter controversy between the parties. This was a letter dated 7th May, 1981 addressed by the Chief Justice of Delhi to the Law Minister in response to the request contained in the letter of the Law Minister dated 15th April, 1981. The Chief Justice of Delhi by his letter supplied to the Law Minister the material on which his opinion against the continuance of 8. N. Kumar was based. This letter contained at the top the words “Secret (For personal attention only)”, It contained in the second paragraph a prefatory statement by way of preamble to the facts set out in the subsequent paragraphs. This prefatory statement is extremely important and it may be set out in extensor in the following words:
Hon’ble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S.N. Kumar and the same were communicated to me by you for my comments in your D.O. No. 50/2/81-Jus., dated 19th March, 1981, The Chief Justice had also written to me a letter dated 14th March, 1981 asking for “details and concrete facts in regard to the allegations against Justice Kumar.” As I wrote to you in my D.O. No. 293-HCJ/PPS, dated 28th March, 1981. I discussed the matter with Hon’ble the Chief Justice and as desired by him, in reply to his letter, wrote my D. O. No. 292-HCJ/PPS dated March 28, 1981, a copy of which was forwarded to you. Accordingly, it is not only embarrassing but painful for me to write this letter. As you, however, desire to know what material provided the basis for me to conclude that Justice Kumar’s integrity was not above board, I give below some facts.
(Underlining is ours) The Chief Justice of Delhi reiterated in this prefatory statement that pursuant to the letter dated 14th March, 1981 addressed by the Chief Justice of India asking for “details and concrete facts in regard to the allegations against Justice Kumar”, he had met the Chief Justice of India and discussed the matter with him and the letter dated 2.8th March 1981 was written by him as desired by the Chief Justice of India and accordingly — for that reason — it was not only embarrassing but painful for him to write this letter but since the Law Minister desired to know what material provided the basis for him to conclude that the integrity of S.N. Kumar was not above board, he was proceeding to give some facts. It is clear from this prefatory statement that it was as per the desire of the Chief Justice of India that the letter dated 28th March, 1981 was addressed by the Chief Justice of Delhi in the terms in which he did. There is an undercurrent of suggestion here that the Chief Justice of India did not approve of the idea of the Chief Justice of Delhi setting out in a letter the facts discussed by him with the Chief Justice of India and perhaps that is why the Chief Justice of Delhi stated that it was both embarrassing and painful for him to write that letter setting out the facts on which his opinion was based. The Chief Justice of Delhi then proceeded to state the facts on the basis of which he had formed the view that S.N. Kumar did not enjoy good reputation for integrity. It is not necessary for us to refer to these facts in any detail but suffice it to state that several facts were set out by the Chief Justice of Delhi which made him conclude “that the reputation for integrity of Justice Kumar was not as should for a Judge of the High Court”. The Chief Justice of Delhi pointed out that some time early in May, 1980 one of his colleagues had told him that he had information to the effect that “if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an Insurance Company would be decided in favour of that party”. The reference here was obviously to suits Nos. 1408, 1409 and 1417, of 1979 which were filed by Jain Sudh Vanaspati Limited and Jain Export Private Limited against the New Indian Insurance Company Limited. The Chief Justice of Delhi stated that even though original side of work was taken away from S.N. Kumar and he was put on the appellate side in the second half of the year, 1980, that is, after the summer vacation, S.N. Kumar did not release these three suits as also some other suits which were part-heard before him and continued to deal with them, In August, 1980, observed the Chief Justice of Delhi, the same colleague of his who had talked to him earlier as also another colleague mentioned to him that doubts were being expressed about the integrity of S.N. Kumar vis-a-vis these three cases and some others whereupon he “made discreet inquiries from some of the leading counsel and they in strict confidence supported the allegations”. The Chief Justice of Delhi also found that besides the above mentioned three cases there were a number of other cases which had been retained by S.N. Kumar on his board despite his transfer to the appellate side and in some of these cases “the parties involved were rich and influential including some former Princes”. The Chief Justice of Delhi was at that time acting Chief Justice and after his appointment as permanent Chief Justice early in January, 1981, he looked into this matter a little more closely and made further inquiries and found that some of the lawyers were noncommittal but there were others who “asserted with some force that Justice Kumar’s reputation was not above board”. The Chief Justice of Delhi also talked to some other colleagues besides the two who had spoken to him and they also said that “unconfirmed reports have been circulated in the Bar which were not very complimentary to Justice Kumar”. The Chief Justice of Delhi pointed out that these were the facts on the basis of which he had come to the opinion that S.N. Kumar did not enjoy good reputation for integrity. Now it was sought to be argued by learned Counsel appearing on behalf of S.N. Kumar that these facts were not true and the Chief Justice of Delhi was not justified in reaching an adverse opinion against S.N. Kumar on the basis of these facts. The learned Counsel for S.N. Kumar submitted that it was a well established practice of the Delhi High Court that a part-heard matter always went with the Judge and was heard by him whether he was’ transferred from the original side to the appellate side or vice versa and S. N. Kumar did not therefore act improperly in taking up part-heard matters even after he was transferred to the appellate side and no inference of lack of integrity could therefore be drawn against him merely because he continued to take up the part-heard matters. We are afraid this argument which seeks to assail the credibility of the opinion expressed by the Chief Justice of Delhi cannot be entertained by us. It is not open to the Court to hold an’ inquiry and determine for itself the correctness of the opinion of any of the constitutional authorities required to be consulted by the President. The opinion given by any such constitutional authority may be mistaken or erroneous but the corrective for such mistake or error is to be found in the constitutional provision itself and it cannot be provided by judicial intervention. The Court cannot take evidence for the purpose of determining whether the facts on which the opinion of a constitutional authority required to be consulted is based are true or not or whether the opinion expressed by such constitutional authority is well-founded or not. That is a function entrusted by the Constitution to the President, that is, the Central Government and it is for the Central Government to Judge whether the opinion expressed by the constitutional authority such as the Chief Justice of the High Court is well-founded or not and whether it should be accepted or rejected. The court cannot be invited to go into the question whether the facts on which the opinion of the Chief Justice of Delhi was based were correct or not and whether the opinion expressed by him was or was not justified, But all the same we may point out that, even on the record as it stands, the statement of S. N. Kumar in his affidavit In regard to the practice of the Delhi Court, does not seem to accord with what the Chief Justice of India, according to his (SIC)tatter dated 22nd May, 1081 appear have learnt as a result of the inquiry made by him, namely, 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 provided that a substantial amount of time has been already spent on them. It is not every part-heard case which travels with the Judge from the original to the appellate side and vice versa but only those part-heard cases on which a substantial amount of time has already been spent. It may be pointed out that there is nothing to show that the part-heard suits which continued to remain with S.N. Kumar were suits on which a considerable amount of time had already been spent In fact, suits Nos. 1408, 1409 and 1417 of 1979 were not at all part-heard suits and much less could it be said that a considerable time had already been spent by S.N. Kumar on them and yet, according to the Chief Justice of Delhi, they continued to be dealt by S.N. Kumar. But, as we observed a little while ago, this is not a matter which can be investigated by the court and it must be left to the President, that is, the Central Government to decide what credibility or weight to attach to the opinion of the Chief Justice of Delhi The Court is concerned merely to enquire whether there was, in fact, full and effective consultation with the Chief Justice of Delhi and the Chief Justice of India and not whether the opinion given by the Chief Justice of Delhi or the Chief Justice of India was correct or not. It is possible that the opinion expressed by the Chief Justice of Delhi in the present case was mistaken or erroneous, but that is not an issue which can be examined by the court. The Chief Justice of Delhi bona fide came to the view that S.N. Kumar did not enjoy good reputation for integrity and he frankly expressed this view to the Law Minister as he was bound to do, but from this it does not necessarily follow that S.N. Kumar was lacking in integrity. The possibility of a bona fide error on the part of the Chief Justice of Delhi can never be excluded.
95. There is also inherent evidence in the letter dated 7th May, 1981, to show that the Chief Justice of Delhi acted bona fide in giving his opinion to the Law Minister in regard to the integrity of S.N. Kumar. The Law Minister had by his letter dated 15th April, 1981 requested the Chief Justice of Delhi to send his comments on the complaint made by one Sabir Hussain, an advocate. The Chief Justice of Delhi after examining the relevant files in regard to this complaint intimated to the Law Minister by his letter dated 7th May, 1981 that the complaint related to a suit which was disposed of by S.N. Kumar and it was therefore a matter which could be commented upon only judicially, The Chief Justice of Delhi adopted a correct approach in regard to this complaint and did not betray any undue enthusiasm to condemn S.N. Kumar, If the Chief Justice of Delhi were actuated by any mala fides against S.N. Kumar, he would have immediately seized upon this complaint and tried to utilise it for the purpose of supporting his opinion against the integrity of S.N. Kumar, We may point out that the Chief Justice of Delhi was perfectly right in not sitting in judgment over the decision given by S.N. Kumar in Sabir Hussein’s suit, for it is not open to the Chief Justice of a High Court to examine the judgments given by an additional Judge and pass upon the quality of those judgments for the purpose of deciding whether the additional Judge should be reappointed or not. This exercise is not open to the Chief Justice of the High Court or to the Chief Justice of India because the additional Judge is not on probation and that is why we are constrained to observe though the case of O.N. Vohra not being before us, it is not necessary for us to do so, that the Chief Justice of Delhi was not justified in wadding through the papers of Kissa Kursi Ka Case for the purpose of deciding whether O.N. Vohra should be reappointed as an additional Judge. If O.N. Vohra was in error in not disposing of any application in the case or in making a wrong order on such application, it was for this Court in appeal, in the exercise of its judicial power, to comment on the judicial performance of O.N. Vohra and it was not for the Chief Justice of Delhi to sit in judgment over it for the purpose of condemning O.N. Vohra.
96. We may point out that the Chief Justice of Delhi also referred in his letter dated 7th May, 1981 to the low disposals of S.N. Kumar as also to his unsatisfactory behaviour with the members of the Bar. But these allegations need not detain us because the discontinuance of S.N. Kumar as an Additional Judge be President was not based on these allegations but it was founded only on the opinion expressed by the Chief Justice of Delhi in regard to the integrity of S.N. Kumar.
97. Now we come to a most important part of the controversy between the parties. The letter dated 7th May, 1981 addressed by the Chief Justice of Delhi to the Law Minister carried at the top the remark, “Secret (for personal attention only)”. Now before this letter was sent by the Chief Justice of Delhi to the Law Minister, he had informed the Law Minister to treat it as secret but at that time the Law Minister did not try to probe into the implications of this request. Later, however, when the Chief Justice of Delhi, with reference to the letter proposed to be written by him in regard to the continuance of O.N. Vohra, requested that that letter also should be kept secret for personal attention only, the Law Minister asked him as to what exactly he meant by the remark “Secret (for personal attention only)” in the letter dated 7th May, 1981. The Chief Justice of Delhi in reply intimated to the Law Minister that what he meant was that that letter should not be brought to the notice of the “Chief Justice of India and for three very good reasons, namely:
1. For reasons stated in the opening portion of his letter dated 7th May, 1981.
2. He felt highly embarrassed and perplexed after he addressed the original letter dated 19-2-1981 about Shri S.N. Kumar as the contents of that letter came clearly to be known to Shri S.N. Kumar and certain of his colleagues on the bench as a result of which’ it embarrassed him in discharge of his duties and functions. He felt that the contents of his letter dated 7th May, 1981 would also get into the hands of Shri S.N. Kumar and certain of his other colleagues and he would thereby be put to greater embarrassment which might create problems for him in future in the discharge of Ms duties as chief justice.
3. He felt that the Chief Justice of India had already started wrongfully denigrating him for his letter of February 81 as some of his friends convey ed to him the feelings of the CJI. The Chief Justice of Delhi also informed the Law Minister that “ha could not afford to spoil his relations with the Chief Justice of India on the one hand and on the other could not desist from expressing without fear or favour what he felt of certain matters” and if he was “going to be suspect for discharging his functions fairly and conscientiously, then his functioning as the Chief Justice would never be smooth vis-a-vis Chief Justice of India.” The Law Minister placed this conversation on record in a note made by him on 19th May, 1981 as also in a letter dated 29th May, 1981 addressed by him to the Chief Justice of Delhi. Pursuant to this request made by the Chief Justice of Delhi, the Law Minister did not place the letter dated 7th May 1981 before the Chief Justice of India.
98. Though the Chief Justice of India had stated in his note dated 3rd March, 1981 that he would like to go carefully into the charges against S.N. Kumar and he had a meeting with the Chief Justice of Delhi on 26th March, 1981 in that connection, he did not write to the Law Minister until the 3rd week of May 1981 giving his opinion in regard to the question whether S.N. Kumar should be continued or not, Meanwhile, the time fixed by this Court for the Union of India to decide whether S.N. Kumar should be reappointed for a further term as an additional Judge or should be appointed as a permanent Judge or other-wise, was expiring on 27th May 1981 and the Law Minister was therefore constrained to address a letter dated 21st May 1081 reminding the Chief Justice of India that he had stated In his note dated 3rd March, 1981 that ha desired to look carefully into the charges against S.N. Kumar and requesting him that (SIC) he had made any inquiries, the Law Minister “would be grateful to have the details” and also pressing him to give his “urgent advice in regard to the continuance or otherwise” of the term of S.N. Kumar. It appears that this letter was received by the Chief Justice of India when he was camping at Simla during the summer vacation and on receipt of this letter, the Chief Justice of India addressed a communication dated 22nd May 1981 to the Law Minister stating that he had made the most careful and extensive inquiries in regard to the allegations against the integrity of S.N. Kumar as also hate of disposals and he was satisfied that there was no substance in any of these allegations. The Chief Justice of India pointed out that it was a common practice in the Delhi High Court that even after the allocation of a Judge was changed from the original side to the appellate side and vice versa, he continued to take up the part-heard cases on which sufficient amount of time had already been spent and S.N. Kumar therefore did nothing out of the way or unusual in taking up part-heard cases after the allocation of his work was changed. The Chief Justice of India observed that, on inquiries made by him, he disagreed with the view taken by the Chief Justice of Delhi that S.N. Kumar was either slow in his disposals or his integrity was doubtful and stated that it was not possible for him to agree that the term of S.N. Kumar should not be extended for the reasons mentioned by the Chief Justice of Delhi Not one member of the Bar or Bench, said the Chief Justice of India, doubted the integrity of S.N. Kumar and on the contrary, some of them stated that he was a man of unquestioned integrity. It seems that some Intelligence Bureau report regarding S.N. Kumar was also sent by the Law Minister to the Chief Justice of India for his opinion along with his letter dated 22nd May, 1981, but the Chief Justice of India could not give his opinion with reference to the report since he had no time to examine it and he therefore stated that he would give his opinion after his return to New Delhi on 26th May 1981 and in the circumstances he recommended extension of the term of S.N. Kumar for another short term of three months. But, since one short term extension had already been granted, the Law Minister presumably thought that it would not be right to go on giving short, term extensions but that a decision should now be taken whether S.N. Kumar should be continued or not and he therefore, proceeded to make his recommendation ignoring the Intelligence Bureau Report against S.N. Kumar, the rate of his disposals and even his alleged behaviour in Court and confining himself only to the question of his reputation for Integrity. The Law Minister put up a note before the Prime Minister on 27th, May, 1981 summarising the effect of the correspondence which had taken place between him, The Chief Justice of Delhi and the Chief Justice of India and pointing out that notwithstanding his specific request as to details of the inquiries made by him, the Chief Justice of India had not furnished the same to him and on the contrary the letter dated 22nd May 1981 addressed by the Chief Justice of India revealed “that he became a victim of his own charge of vagueness made by him against the Chief Justice of Delhi.” The Law Minister stated in the note that he presumed that when the Chief Justice of Delhi and the Chief Justice of India met, “the former must have informed the latter bout the details that he had mentioned… in his letter dated 7th May 1981″ and this inference was obvious from the letters addressed by the Chief Justice of Delhi to the Law Minister and the Chief Justice of India. The Law Minister observed that even according to the Chief Justice of India, the prevailing practice in the Delhi High Court was that not every part heard case but only those part-heard cases on which substantial amount of time had already been spent would go with the Judge when there was change of allocating of work but the Chief Justice of India had” “surprisingly left the matter there” without probing further “as to whether the part-heard, matters which Justice Kumar chose to handle as a single Judge notwithstanding his having been allocated to the Division Bench were such on which substantial amount of time had already been spent by him.’ It was also pointed out by the Law Minister in his note that It was not merely a case of drawing inference against the integrity of S.N. Kumar from his taking up part-heard cases after being transferred to the appellate side but the details given by the Chief Justice of Delhi in his letter dated 7th May 1981 went further and in contrast, the letter of the Chief Justice of India dated 22nd May, 1981 was not only lacking in details but was too vague. The Law Minute after making this analysis concluded that in the matter of assessment of integrity he preferred to accept the opinion of the Chief Justice of Delhi since “it is in his association that the Judge concerned discharges his duties and he has a better occasion and opportunity to watch his (SIC) and conduct” and on this view recommended that S.N. Kumar may not be continued any further as an additional Judge, The result was that S.N. Kumar was not continued as an additional Judge on the expiration of he term on 6th June, 1981,
99. Now the argument urged on be-hall of the petitioners and S.N. Kumar was that the facts set out in the letter of the Chief Justice of Delhi dated 7th May, 1981 on which the decision of the Central Government not to continue S.N. Kumar us an additional Judge was based, were not disclosed to the Chief Justice of India and he had therefore no opportunity to consider those facts and give his opinion upon them and hence there was no full and effective consultation between the Central Government and the Chief Justice of India and the decision of the Central Government not to continue S.N. Kumar as an additional Judge was vitiated by reason of non-compliance with the requirement of consultation laid down in Article 217. This argument was pressed with great vehemence by the learned Counsel appearing on behalf of S.N. Kumar and he injected considerable amount of passion in it, but we do not think it can be sustained. It is undoubtedly true that it was constitutionally impossible to the Central Government to arrive at the decision not to continue S.N. Kumar as an additional Judge without consultation with the Chief Justice of Delhi and the Chief Justice of India as mandatorily required by Article 217. But as pointed out by us in an earlier portion of the Judgment, it was not necessary that the full and identical facts which at once constituted “both the source and foundation of the Anal decision” of the Central Government should be placed before the Chief Justice of Delhi and the Chief Justice of India by the Central GOV eminent itself or that they should be brought to the notice of the Chief Justice of Delhi and the Chief Justice of India in any particular order or by following any particular procedure. What was necessary to constitute toll and (SIC)effective consultation within the meaning of Article 217 was that the Chief Justice of Delhi and the Chief Justice of India should have for their consideration “full and identical facts” which ultimately formed the basis of the (SIC) of the Central Government, Now there can be no doubt that the decision of the Central Government not to appoint S.N. Kumar for a further term was based on the facts provided by the Chief Justice of Delhi in his letter dated 7th May, 1981 and if these facts were not placed before the Chief Justice of India before he gave his opinion in regard to the continuance of S.N. Kumar in his letter dated 22nd May, 1981, the decision of the Central Government would be clearly vitiated for want of full and effective consultation with the Chief Justice of India. It therefore, becomes material to enquire whether the facts set out in the letter of the Chief Justice of Delhi dated 7th May, 1981 were placed before the Chief Justice of India before he gave his opinion in the letter dated 22nd May, 1981. We have already discussed this question at some length while dealing with the meeting held by the Chief Justice of Delhi with the Chief Justice of India on 26th Mar., 1981. and the letters dated 28th March, 1981 addressed by the Chief Justice of Delhi to the Law Minister and the Chief Justice of India subsequent to that meeting. We have pointed out various circumstances which, establish beyond any doubt that all the facts relating to the complaints and doubts expressed against the integrity of S.N. Kumar which were in the possession of the Chief Justice of Delhi must have been disclosed by him to the Chief Justice of India at the meeting held on 26th. March, 1981. We need not repeat what we have already discussed in great detail but we may add that, judging as practical men conversant with the ordinary course of human affiairs, we do not see any reason why the Chief Justice of Delhi should not have disclosed these facts to the Chief Justice of India, particularly when the Chief Justice of India had asked him to furnish “details and concrete facts in regard to the allegations against Justice Kumar”, But, the question may then be asked as to why, if the Chief Justice of Delhi had disclosed all the facts set out in the letter dated 7th May, 1981, to the Chief Justice of India at the meeting held on 26th March, 1981, the Chief Justice of Delhi should have requested the Law Minister not to bring the letter dated 7th May, 1981 to the attention of the Chief Justice of India, The Law Minister was also intrigued by this request and he therefore, asked the Chief Justice of Delhi as to why he did not want the tatter dated 7th May 1981 to be placed before the Chief Justice of India and the Chief Justice of Delhi gave three reasons which we have reproduced verbatim a little earlier. The first reason given by the Chief Justice of Delhi is extremely significant because it show clearly and indisputably that the facts set out in the letter dated 7th May, 1981 were discussed by the Chief Justice of Delhi with the Chief Justice of India at the meeting held on 26th March, 1981. The Chief Justice of Delhi pointed out that he did not want the letter dated 7th May, 1981 to be brought to the attention of the Chief Justice of India because, as observed by him in the opening portion of the letter, he had discussed the “details and concrete facts in regard to the allegations against Justice Kumar” with the Chief Justice of India but the letter dated 28th March, 1981 was write ten by him in the terms in which it was couched as per the desire of the Chief Justice of India and therefore it was embarrassing and painful for him to write the letter dated 7th May, 1981. This reason given by the Chief Justice of Delhi carries a veiled suggestion though not expressly articulated but implicit in what he has stated, that the Chief Justice of India did not want his. to place on record the “details and concrete facts in regard to the allegations” against S.N. Kumar and that is why he wrote the letter dated 28th Mar., 1981 in the terms he did according to the desire of the Chief Justice of India. This was perhaps the reason why the Chief Justice of Delhi found it embarrassing as well as painful to write the letter dated 7th May, 1981 setting out the “details and concrete facts in regard to the allegations” against S.N. Kumar, such a course being presumably contrary to the suggestion of the Chief Justice of India. We have, of course, no definite material before us on the basis of which we can conclude that the Chief Justice of India must have asked the Chief Justice of Delhi not to place the detailed facts relating to the complaints and doubts against S.N. Kumar in writing, but it does appear that some discussion must have taken place between the Chief Justice of Delhi and the Chief Justices of India as a result which the Chief Justice of Delhi bona fide carried a feeling that the Chief Justice of India might feel offended if the Chief Justice of Delhi were to put the detailed facts in regard to the allegations against S.N. Kumar on record, contrary to the view held by the Chief Justice of India. That is why the Chief Justice of Delhi was anxious that his letter dated 7th May, 1981 should not be brought to the attention of the Chief Justice of India. It was not because the Chief Justice of Delhi did not want the facts set out in the letter dated 7th May, 1981 to be disclosed to the Chief Justice of India that he requested the Law Minister not to place that letter before the Chief Justice of India, but because in view of the impression given or perhaps a suggestion made at the meeting by the Chief Justice of India, he apprehended that if he placed those facts on record contrary to the wish at the Chief Justice of India, the Chief Justice of India might feel offended and his relations with the Chief Justice of India might be spoilt. The second reason given by the Chief Justice of Delhi was that he had found that the contents of his previous letter dated 19th Feb., 1981 had coma to be known to S.N. Kumar and some of his colleagues on the Bench and he therefore felt that if the letter dated 7th May, 1981 was not kept by the Law Minister with himself along, but was sent by him to the Chief Justice of India, leakage might occur in the process and the contents of that letter also might get known to S.N. Kumar and others, causing him further embarrassment, The Chief Justice of Delhi might have been right or might have been wrong in entertaining the apprehension that if his letter dated 7th May 1981 was sent to the Chief Justice of India, its contents might in the process leak out and S.N. Kumar and others might come to know about them, but there is no reason to doubt that he bona fide felt this apprehension and that weighed with him by asking the Law Minister not to bring this letter dated 7th May 1981 to the attention of the Chief Justice of India particularly since he had already discussed the “details and concrete facts” set out in that letter with the Chief Justice of India, The third reason given by the Chief Justice of Delhi was that the Chief Justice of India had already started wrongfully denigrating him for his letter dated 19th Feb., 1981 as intimated to him by his friends and that if the Chief Justice of India came to know that he had placed the detailed facts in regard to the allegations against S.N. Kumar on record contrary to his wish, the Chief Justice of India might feel offended and in that event his functioning as Chief Justice of Delhi would become difficult vis-a-vis the Chief Justice of India, This feeling voiced by the Chief Justice of Delhi might or might not be justified and the information received by him from his friends in regard to the feelings of the Chief Justice of India might or might not be correct, but we have no reason to hold that the Chief Justice of Delhi acted otherwise than bona fide in carrying this feeling. It may be that the Chief Justice of Delhi was wrong in entertaining this feeling, but his bona fides and veracity cannot be doubted for a moment. Moreover, that is not a matter which falls within the scope of our inquiry. What we have to determine is only a very limited issue, namely whether the facts set out in the letter dated 7th May, 1981 were disclosed by the Chief Justice of Delhi to the Chief Justice of India and so far as that is concerned, there is no doubt in our minds that these facts were discussed by the Chief Justice of Delhi with the Chief Justice of India at the meeting held on 26th March 1981 and no contrary inference can be drawn merely because, for the three reasons given by him, the Chief Justice of Delhi asked the Law Minister not to bring his letter dated 7th May 1981 to the attention of the Chief Justice of India.
100. There is, in fact, another piece of evidence which clearly establishes that the detailed facts in regard to the allegations against S.N. Kumar were discussed between the Chief Justice of Delhi and the Chief Justice of India, The petitioners and S.N. Kumar of course did not dispute that the meeting of 26th March, 1981 did take place between the Chief Justice of Delhi and the Chief Justice of India but their contention was that the only circumstance pointed out by the Chief Justice of Delhi to the Chief Justice of India for drawing an adverse inference against the integrity of S.N. Kumar was thee had taken up part-heard cases of the original side even after he was transferred to the appellate side and no other facts in regard to the integrity of S.N. Kumar were discussed by the Chief Justice of Delhi with the Chief Justice of India. This contention of the petitioners and S. N: Kumar is wholly without force and it stands completely answered by what we have already discussed in the preceding paragraphs of this judgment But, additionally, we may point out that this contention is also belied by the counter-affidavit dated 7th July 1981 filed by S.N. Kumar himself. If the only complaint in regard to integrity of S.N. Kumar mentioned by the Chief Justice of Delhi to the Chief Justice of India related to the taking up of part-heard cases by S.N. Kumar after transfer to the appellate side and that was a fortiori the only matter mentioned by the Chief Justice of India to S.N. Kumar when he called S.N. Kumar for discussion after his meeting with the Chief Justice of Delhi, it is difficult to understand how S.N. Kumar happened to refer to Suits Nos. 1408, 1409 and 1417 of 1979 in his counter-affidavit filed before the disclosure of the letter dated 7th May, 1981, These three suits were not part heard suits because the summonses for judgment in these three suits had been disposed of S.N. Kumar on 7th March, 1980 by granting unconditional leave to defend and yet they were specifically referred to by S.N. Kumar in his counter-affidavit and explanation was sought to be given in regard to them. These three suits were particularly mentioned in the letter dated 7th May, 1981 and according to that letter, it was in relation to these suits that allegation of lack of integrity was made against S.N. Kumar. Now if the complaint against the integrity of S.N. Kumar in relation to these three suits was not mentioned by the Chief Justice of Delhi to the Chief Justice of India at the meeting held on 26th Mar. 1981, how could S.N. Kumar think of dealing with them1 in his counter-affidavit. The reference to these three suits in the counter-affidavit of S.N. Kumar clearly shows that apart from the part-heard suits, these three suits and the allegations relating to them were also disclosed by the Chief Justice of Delhi to the Chief Justice of India and if thae so, there can be no doubt that all the facts in regard to the allegations against S.N. Kumar must have been discussed between the Chief Justice of Delhi and the Chief Justice of India.
101. It was suggested by the learned Counsel on behalf of S.N. Kumar in the course of arguments that the Chief Justice of Delhi was anxious to keep the facts set out in the letter dated 7th May, 1981 secret from the Chief Justice of India, lest he should make his comments on them and reject the recommendation not to continue S.N. Kumar as an additional Judge based on these facts. But this suggestion is meaningless because the Chief Justice of Delhi in any event knew as a result of the meeting held on 26th March 1981 that the Chief Justice 6f India was not agreeing with the view expressed by him and was against his recommendation to discontinue S.N. Kumar as an additional Judge, while he, on his part, was not prepared to change his view and retract the recommendation made by him, because even after the discussion with the Chief Justice of India, he felt that he could not honestly recommend continuance of S.N. Kumar as an additional Judge and if that be so, there is no reason why he should have wanted to keep back his letter dated 7th May, 1981 from the Chief Justice of India except for the three reasons given by him. 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 letter dated 7th May, 1981 before the Chief Justice of India, So long as the Chief Justice of Delhi was acting bona fide in the discharge of his constitutional duty — and we have no doubt that in the matter of continuance of S.N. Kumar he was acting bona fide, 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. There are occasions when persons holding high constitutional offices are called upon to perform an unpleasant duty and this duty they have to perform, whatever by the consequences. If necessary, let the heavens fall but what is right and it shall be done without fear or favour, affection or goodwill. Long ‘years ago that great common law Judge, Lord Mansfield spoke of the judicial office in majestic tones and said:
I will not do that which conscience tells me is wrong, upon his occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow…. Once for all, let it be understood, ‘that no endeavours of this kind will influence any man who at present sits here.
What the learned Chief Justice said in regard to judicial function must apply with equal validity where a Judge is called upon to discharge any other function entrusted to him by the Constitution and he must boldly and fearlessly do that which Constitution commands. But merely because the Chief Justice of Delhi flinched and faltered out of a sense of apprehension that the Chief Justice of India might feel offended by his writing the letter dated 7th May, 1981, it does not follow that the facts set out in that letter were not personally discussed by him with the Chief Justice of India at the meeting held on 26 Mar, 1981. We are clearly of the view that the “full and identical facts” on which the decision of the Central Government was based were placed before the Chief Justice of India there was full and effective consultation with him before the Central Govt. reached the decision that S.N. Kumar should not be continued as an additional Judge. We may also point out that this decision of the Central Government was not based on any irrelevant considerations, since, as we have already pointed out earlier, lack of reputation for integrity is certainly a most relevant consideration in deciding whether a person should be appointed a Judge.
102. We may make it clear that in taking this view we do not for a moment wish to suggest that S.N. Kumar was lacking in integrity. That is not a matter Into which we are called upon to enquire and nothing that is stated by us should be regarded as expression of any opinion en this question. We may observe in (SIC)hrness to S.N. Kumar that the Chief Justice of India clearly stated it to be his opinion that the integrity of S.N. Kumar was unquestionable. What happened here was that there were two conflicting opinions given by the two constitutional authorities required to be consulted, namely, the Chief Justice of Delhi and the Chief Justice of India. Both were perfectly bona fide opinions and the Central Government had to choose, between them and come to its own decision. The Central Government preferred the Opinion of the Chief Justice of Delhi for the reasons mentioned in the note of the Law Minister dated 27th May, 1981 and decided not to appoint S.N. Kumar as an additional Judge for a further term. We do not think this decision suffers from any constitutional infirmity.
103. But before we part with this point, we must refer to one last contention urged on behalf of the petitioners and S.N. Kumar and that contention was that the non-appointment of S.N. Kumar as an additional Judge was tantamount to his removal and the Central Government was therefore bound to follow the principles of natural justice before taking the decision not to continue him an Additional Judge, This contention is without merit and the premise on which it is based is not sustainable. It is wholly incorrect to say that when an additional Judge whose term has expired and who would therefore have to return to the Bar or to the subordinate Judicial service, is not appointed a permanent Judge or an additional Judge for a further, term he is re moved by the Central Government. We have already discussed this aspect of the matter and pointed out that on the expiration of his term, an additional Judge has no right to be appointed a permanent Judge or an additional Judge for a further term and his only right is to be considered for such appointment and if as a result of such consideration, after going through the consultation process envisaged in Article 217, he is not considered suitable for further appointment and it is decided not to reappoint him, he cannot complain against the decision, unless he can show that there was no full and effective consultation as contemplated in Article 217 or that the decision not to appoint him was based irrelevant considerations. If he is not appointed a permanent Judge or an additional Judge for a further term, he goes out, but that happens because the term for’ which he was originally appointed has come to an end and not because he is removed, There is therefore no question of giving him an opportunity to be heard before the decision is taken not to appoint him as a permanent Judge or an additional Judge, We must in the circumstances reject the challenge leveled on behalf of the petitioners and S.N. Kumar against the decision of the Central Government not to appoint S.N. Kumar as an additional Judge for a further term.
104. We would therefore dismiss the first group of writ petitions in so far as they seek relief in respect of O.N. Vohra and S.N. Kumar. No relief can be granted in respect of O.N. Vohra because, though added as a party respondent, he has not appeared and claimed any relief against the decision of the Central Government to discontinue him as an additional Judge and has accepted such decision without protest or complaint, That is the reason why we have not examined the complaint of the petitioners in regard to discontinuance of O.N. Vohra as an additional Judge, So far as S.N. Kumar is concerned, we have rejected his claim for relief, because, in our opinion, and we have already given our reasons taking this view, the decision to discontinue him as an additional Judge was taken by the Central Government after full and effective consultation with the Chief Justice of Delhi and the Chief Justice of India and it was not based on any irrelevant considerations, We have taken the view that the circular letter issued by the Law Minister was not unconstitutional and void and hence the first group of writ petitions must also fail in so far as they challenge the constitutional validity of the circular letter. The other relief claimed in the first group of writ petitions have also been rejected by us and hence this group of writ petitions must wholly fail.
105. But, while dismissing this group of writ petitions, we may observe that though, in our opinion, there was full and effective consultation with the Chief Justice of Delhi and the Chief Justice of India before the decision was taken by the Central Government to discontinue S.N. Kumar as an additional Judge ‘and neither the petitioners nor S.N. Kumar could therefore have any legitimate cause for grievance against such decision, it would be a good thing if, having regard to the high status and dignity of a High Court Judge, the Union of India could see its way to place the letter dated 7th May, 1981 addressed by the Chief Justice of Delhi to the Law Minister before the Chief Justice of India and elicit his opinion with reference to that letter and then consider whether S.N. Kumar should be re-appointed as an additional Judge in the Delhi High Court. This is only a suggestion which we are making ex cathedra for the acceptance of the Government; if thought fit. K.B.N. Singh’s case.
106. The second group of writ petitions raises the question of constitutional validity of the orders transferring Chief Justice M.M. Ismail to the Kerala High’ Court and Chief Justice K.B.N. Singh to the Madras High Court, However, so far as Chief Justice M.M. Ismail is concerned, the question has become academic because he has stated in the counteraffi davit filed by him in reply to the writ petition of Miss Lily Thomas that he does not want anyone to litigate for or against him nor does he want anything about him to be argued or debated and he has subsequently resigned his office as Chief Justice of the Madras High Court the only question which therefore survives for consideration is whether the transfer of Chief Justice K.B.N. Singh to the Madras High Court could be said to be constitutionally invalid. The determination of this question obviously depends upon the true scope and ambit of the power of transfer conferred under Clause (1) of Article 222. That Article reads as follows:
Article 222(1). The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
This article came up for consideration before a Bench of five Judges of this Court in Sankalchand Sheth’s case (supra), Mr. Seervai arguing on behalf of Sankalchand Sheth in that case contended that a Judge cannot be transferred from one High Court to another without his consent, and there were two grounds on which he rested this contention, One was that on a proper construction of Article 222 Clause (1) in the context of the basic principle of independence of the Judiciary, consent must be read as a necessary requirement in that article and the other was that since transfer of a Judge involves a fresh appointment in the High Court to which he is transferred, such transfer cannot be made without the consent of the Judge. The majority Judges comprising Chandrachud, J., (as he then was) Krishna lyer, J. and Fazal Ali, J., rejected this contention of Mr. Seervai and held that there was no need or Justification, in order to uphold and protect the independence of the judiciary, to construe Article 222 Clause (1) as meaning that a Judge can be transferred from one High Court to another only with his consent, Justice Untwalia and myself, however, took a different view. We upheld the contention of Mr. Seervai and held that a Judge cannot be transferred from one High Court to another without his consent, Mr. Justice Untwalia based his conclusion on the second ground urged by Mr. Seervai, namely, that the transfer of a Judge involves fresh appointment in the High Court to which he is transferred and the Judge is also required to take a fresh oath in accordance with Article 219 and in the form prescribed in the Third Schedule and he cannot therefore be transferred without his consent. I accepted both the grounds urged by Mr. Seervai in support of his contention and held that it is no doubt true that the words “without his consent” are not to be found in Clause (1) of Article 222, but the word ‘transfer’ which is used there is a neutral word which can mean consensual as well as compulsory transfer and if the high and noble purpose of the Constitution to secure the independence of superior judiciary by insulating it from all forms of executive control or interference is to be achieved, the word ‘transfer’ must be read in the limited sense of consensual transfer. I pointed that when a Judge is transferred to another High Court, he has to make and subscribe a fresh oath or affirmation before the Governor of the State to which he is transferred before he can enter upon the office of a Judge of that High Court and such transfer would not become effective unless the Judge makes and subscribes an oath or affirmation before the Governor and that would plainly be a matter within the volition of the Judge and I therefore, concluded that since the volition of the Judge who is transferred is essential for making the transfer effective, there can be no transfer of a Judge of a High Court without his consent The view taken by Justice Untwalia and myself was thus a minority view, but since the present writ petitions were being heard by a larger Bench than that which decided Sankalchand Sheth’s case, Mr. Seervai canvassed the minority view for acceptance by the Bench of seven Judges. The learned Attorney General, on the other hand, contended that the majority view taken in Sankalchand Sheth’s case represented the correct law on the point and the Bench of seven Judges should affirm that view. I have carefully examined the arguments which have been advanced with great ability and learning on both sides, but I am afraid I find it impassible to change the view I took in Sankalchand Sheth’s case. Nothing that has been said in the course of the arguments has persuaded me to take a different view. I remain unconvinced of the incorrectness of the view taken by me and I hold to that view despite the fact that I still happen to be in a minority, I have already, given elaborate reasons in my Judgment in Sankalchand Sheth’s case for taking the view that a Judge cannot be transferred from one High Court to another without his consent and I think would be a futile exercise on my part to reiterate those reasons once again in this judgment, I hold for the reasons given by me in my judgment in Sankalchand Sheth’s case that the power of transfer under Article 222 Clause (1) cannot be exercised against a Judge without his consent, It is, I may repeat, a highly dangerous power involving great hardship and, injury to the Judge transferred including a stigma on his reputation in cases where the transfer is not effected pursuant to any policy but the Judge is picked out for transfer on a selective basis and to my mind, it makes no difference whether the transfer is made by the Government on its own initiative or it is made at the instance of the Chief Justice of India as in the case of Chief Justice K.B.N. Singh.
107. Even if I am wrong in taking the view that no Judge can be transferred from one High Court to another without his consent, the transfer of Chief Justice K.B.N. Singh must still fail. It has been held in Sankalchand Sheth’s case ), and on this point there was no disagreement between the majority and the minority, that the power to transfer a Judge from one High Court to another can be exercised only in public interest and there must be full and effective consultation between the President, that is, the Central Government and the Chief Justice of India before the decision to transfer a Judge is taken. I wholly accept this construction of Clause (1) of Article 222 and since full and detailed reasons have been given in the various judgments in Sankalchand Sheth’s case I need not indulge in the same exercise again,
108. Now it is obvious that when a Judge is transferred from one High Court to another by way of punishment, it can never be in public interest for no public interest would countenance punishment of a Judge except by way of impeachment under proviso (b) to Clause (1) of Article 217 read with Clause (4) of Article 124. There is a clear antithesis between a transfer by way of punishment and a transfer In public interest and therefore, a transfer by way of punishment must be held to be outside the scope and ambit of Article 222 Clause (1), In fact, if was so held in Sankalchand Sheth’s case by all the Judges, But the question then arises when can it be said that a Judge is transferred from one High Court to another by way of punishment, Undoubtedly, when a Judge is transferred by the Government because he does not toe the line of the executive or gives decisions against the Executive or has for some reason or the other fallen from its grace, it would be a transfer byway of punishment. That would be the plainest case of penal transfer. But these are not the only circumstance in which a Judge may be transferred from one High Court to another by way of punishment. The element of punishment is not confined merely to the wrath of the Government on account of a Judge being inconveniently independent. There may be cases where a Judge may be transferred because he is not behaving properly or is conducting himself in a manner not befitting the position of a High Court Judge and such a transfer grounded on the conduct or behaviour of the Judge would clearly be punishment, even if it be on the recommendation of the Chief Justice of India. It is also possible that the Chief Justice of India may find in a given case that a Judge of a High Court is promoting the interest of his son or brother in practice or by passive inaction allowing his son or brother to exploit his relationship with the Judge for the purpose of advancing his professional interest and in such a case, the Chief Justice of India may recommend that the Judge should be transferred to another High Court and the Government may accept such recommendation, Would the transfer in such a case not clearly be by way of punishment? There may also be cases where the recommendation of the Chief Justice of India for transfer of a Judge may proceed from his disagreement with the social philosophy of the Judge or his unhappiness with the manner in which he is deciding cases and the Government may unquestioningly accept such recommendation, This would also, in my opinion, be nothing short of punishment, I take the view that whenever transfer of a Judge is effected for a reason bearing upon the conduct or behaviour of the Judge, it would be by way of punishment and therefore, not permissible under Clause (1) of Article 222. When I say this, I may make if clear that I do not regard transfer pet se as a punishment, It is the reason for which the transfer is made, which makes it penal and if that reason is related to the conduct of behaviour of the Judge the transfer would clearly be a penal transfer not in public interest and hence outside the scope and ambit of Article 222 Clause (1).
109. That takes me to a consideration if the question whether in the present case where there was full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K.B.N. Singh to the Madras High Court and whether such transfer was effected in public interest and not by way of punishment. While considering this question, I would like to emphasise at the outset, and the point I am making here is one of great importance, that when a transfer of a Judge of a High Court is challenged in a Court of Law, the burden must lie upon the Government to sustain the validity of the transfer. The power of transfer even according to the majority decision in Sankalchand Sheth’s case , is a drastic power to be exercised only in rare cases as it has the effect of destroying the right o! the Judge who is transferred, to continue as a Judge in the High Court to which he was appointed until he reaches the age of 62 years and removing him to another High Court where possibly ha would not have agreed to go if he had been asked at the tome of his original appointment. When an order of transfer is made, the Judge has a difficult choice, either to go to the High Court where he is transferred or to resign and having burnt his boats and given up his profession long back, he would be in great difficulty if he chose to resign and therefore, from a practical point of view, he would have no option but to go to the other High Court, howsoever inconvenient it may be to him. Moreover, it would be almost impossible for the Judge to successfully challenge the order of transfer if the burden of showing its invalidity were cast upon him. Even as it is, the Judge would have to wage a lone and unequal battle against the Government when he challenges the Order of transfer and if the onus of establishing facts invalidating the order of transfer were thrown upon him, the battle would be rendered still more unequal and the scales would be weighted heavily against him. The result would be that even an invalid order of transfer would pass muster on account of the inability of the Judge to discharge the burden of showing the invalidity of the order of transfer and the virtual immunity thus granted to the order of transfer would seriously impair the independence of the judiciary. Furthermore, having regard to the high status and dignity of a Judge of a High Court, it is but fair that when the Government is displacing the right of the Judge to continue in his High Court, up to the age of 62 years, he should be told what are the reasons which have weighed with the Government in transferring him. He must, be assured that all the constitutional equipments have been compiled with, Besides, the facts showing that there was full and effective consultation between the Government and the Chief Justice of India and the reasons for making the transfer would toe within the special knowledge of the Government and the onus must therefore be upon the Government to prove them. Thus the burden of sustaining the validity of the order of transfer must rest on the Government and this burden, it may be pointed out, is a heavy burden, which must be satisfactorily discharged by the Government. This is the same principle which has been applied by this Court when the legality of detention of a person is challenged by filing an application for a writ of habeas corpus, This Court has consistently taken the view in such cases, unlike the House of Lords in Zamihr’s case, that the burden if sustaining the validity of the detention must lie on the detaining authority.
110. I may observe that this is a remarkably unusual case in which there is substantially a contest between the Chief Justice of a High Court on one hand and the Chief Justice of India on the other. The Government is, of course, a party to this contest since it is ultimately the order of transfer made by the Government which is called in question by Chief Justice K.B.N. Singh, but since the order of transfer was made by the Government on the recommendation of the Chief Justice of India, it is the Chief Justice of India who has accepted the gauntlet and joined the contest against Chief Justice K.B.N, Singh. The Chief Justice of India has filed a counter-affidavit in reply to the writ petition of Chief Justice K.B.N. Singh and others, but having filed such counter-affidavit, he has chosen not to appear before us through counsel, The result is that we have been deprived of the opportunity of asking for clarification of some of the averments made in the counter-affidavit, which appeared at least to some of us to be vague and indefinite. When we asked the learned Solicitor General in the course of the hearing to give us particulars of one statement made in the counter-affidavit of the Chief Justice of India, namely, “Every relevant “aspect of that question was discussed by me fully with the President both before and after I proposed the transfer,” the learned Solicitor General rightly rejoined by saying that he was not appearing for the Chief Justice of India and he could not therefore give the particulars asked for by the Court. We have therefore to proceed on the basis of the counter-affidavit of the Chief Justice of India as it stands without any further clarification or elucidation, We must also remind ourselves when we are deciding this contest between Chief Justice K.B.N. Singh on the one hand and the Chief Justice of India and the Government on the other, that we are sitting as Judges, who have taken an oath to perform the duties of our office without fear or favour, affection or ill-will and it is our solemn and sacred duty to do justice, irrespective of who is the litigant before us. We have the highest regard for the Chief Justice of India as we have for Chief Justice K.B.N. Singh, but they are both litigants before us and while deciding the contest between them, we must be blind to their status or position and we must adjudicate the controversy between them as we might do in the case of any other litigants before us. We roust apply the same standards in assessment of the affidavits and Counter-affidavits filed by Chief Justice K.B.N. Singh and Chief Justice of India as we would do in any other case, The scales of justice cannot tilt one way or another merely because a litigant before us happens to be the Chief Justice of a High Court or the highest amongst the Indian Judiciary. They are all equal before us when we sit on the seat of Justice and we shall do justice, without fear or favour, affection or ill” will and decide the issues arising in the case objectively and dispassionately, forgetful of the high status and dignity enjoyed by the two litigants before us.
111. With these preliminary observations I may now proceed to consider the facts. But on facts, I do not wish to say much because I agree with the Judgment prepared by my learned brother D.A. Desai on this point. He has Carefully analysed the correspondence as well as the affidavits and reached the conclusion that there was no full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K.B.N. Singh to the Madras High Court and the transfer was made by way of punishment and not in public interest I wholly endorse this view taken by him as also the reasons given by him in support of that view, but having regard to the importance of the matter Effecting as it does the fate of the Chief Justice of a High Court, I would add a few words in support of what my learned brother D.A. Desai, has stated in his judgment.
112. So far as the first question is concerned whether there was full and effective consultation between the Central Government and the Chief Justice of India, I have already pointed out, while discussing the scope and effect of Clause (1) of Article 217 as to what is the meaning and content of ‘consultation’, It requires that the Central Government must make available to the Chief Justice of India relevant data in regard to the Judge proposed to be transferred and the Chief Justice of India must also elicit and ascertain all relevant material relating to the Judge either directly from him or from other reliable resources and place such material before the Central Govt. Each of the two constitutional authorities, the Central Govt. and the Chief Justice of India, must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision. There must be careful and intelligent deliberation on the part of each of them on full and identical facts. Each must make known to the other its point of view and they must discuss and examine the relevant merits of the views. It is only after this process is gone through that a decision can be taken by the Central Government to transfer a Judge from one High Court to another. Now here, in the present case, the initiative for transferring Chief Justice K.B.N. Singh was taken by the Chief Justice of India, He proposed by his letter dated 7th Dec., 1980, that Chief Justice K.B.N. Singh may be transferred to the High Court of Rajasthan. This means that on his part he had made up his mind prior to 7th December, 1980 that Chief Justice K.B.N. Singh should be moved but of Patna. Now admittedly, the Chief Justice of India had not mentioned anything about the proposed transfer to Chief Justice K.B.N. Singh prior to making his proposal of 7th Dec., 1960. This was rather strange — I might say almost inexplicable — because the judgments of the Chief Justice of India and Krishna lyer, J. in Sankalchand Sheth’s case have clearly laid down that it is the duty of the Chief Justice of India to elicit and ascertain, if necessary by asking directly the Judge concerned all relevant material relating to the Judge and such material would include, for example, the health of the Judge, the availability of medical facilities in and the climate of the place to which he is to be transferred, the business or occupation of his wife or daughter, the position of his parents and the education of his children etc. as a part of the process of consultation, The Chief Justice of India should have therefore, before making his proposal for transfer by his letter dated 7th Dec. 1980, informed Chief Justice K.B.N. Singh about his proposed transfer to Rajasthan High Court and enquired from him whether he would have any particular problems or difficulties, if he was transferred to the Rajasthan High Court. But unfortunately, no such enquiry was made by the Chief Justice of India before he made his proposal for transfer of Chief Justice K.B.N. Singh to the Rajasthan High Court, which proposal might well have been accepted by the Central Government immediately, but for the fact that there was some difficulty in regard to another proposal simultaneously put forward by the Chief Justice of India for transfer of Chief Justice K.D. Sharma from the Rajasthan High Court to the Kerala High Court. The Chief Justice of India however, changed his proposal in regard to the transfer of Chief Justice K.B.N. Singh and asked the Central Government by his letter dated 20th Dec., 1980, addressed to the Law Minister to transfer Chief Justice K.B.N. Singh to the Madras High Court. There was thus a change in the proposal for transfer of Chief Justice K.B.N. Singh within a period of less than 14 days. But even then, the Chief Justice of India did not inform Chief Justice K.B.N. Singh that he was being transferred to the Madras High Court nor did he enquire to gather from him any relevant material bearing upon the proposal for” transfer. Now it is significant to note that neither of the two letters dated 7th Dec., 1980 and 20th Dec., 1980 sets out any facts showing why the Chief Justice of India desired that Chief Justice K.B.N. Singh should be transferred from the Patna High Court. Neither of these two letters throws any light as to what were the facts on the basis of which the Chief Justice of India recommended transfer Chief Justice K.B.N. Singh from the Patna High Court and there is also nothing in these two letters to show that these facts were communicated by the Chief Justice of India to the Law Minister or to any other high level functionary of the Central Government. The letter dated 7th Dec, 1980 merely states that he was recommending the transfer of Chief Justice K.B.N. Singh on the basis of the data which he had collected as a result of personal inquiries made from several lawyers and many other Judges of the High Court and which he had considered with the greatest objectivity, What were the data collected by him on the basis of which he was recommending the transfer of Chief Justice K.B.N. Singh was not disclosed by the Chief Justice of India in his letter dated 7th Dec., 1980 and from the tenor of this letter it appears though it cannot be said with certainty that no such data must have been communicated to the Law Minister prior to 7th December, 1980, for otherwise the Chief Justice of India would have stated in this letter that he was recommending the transfer on the basis of the data which he had already pointed out to the Law Minister, It is a little surprising that if any facts bearing upon the transfer of Chief Justice K, B, N, Singh were to be communicated by the Chief Justice of India to the Law Minister, it should not have been done in writing particularly when the letter dated 7th Dec,, 1980, recommending the transfer was addressed by the Chief Justice of India to the Law Minister, and this was followed , by another letter dated 20th Dec., 1980, addressed to the Law Minister. It was quite some time after the revised proposal for transfer of Chief Justice K.B.N. Singh was made in the letter dated 20th Dec., 1980 that on 5th Jan., 1981, the Chief Justice of India telephoned to Chief Justice K.B.N. Singh and informed him that Chief Justice M.M. Ismail was proposed to be transferred to the Kerala High Court and that he may therefore have to go to the Madras High Court and enquired him “if he had anything to say on the question of his proposed transfer”. Chief Justice K.B.N. Singh thereupon enquired from the Chief Justice of India as to why “he may be transferred to Madras” on which, according to the counter-affidavit of the Chief Justice of India, he gave two reasons, one that it was Government policy and the other that it was proposed to transfer Chief Justice M.M. Ismail from Madras and “it was necessary to appoint an experience and senior Chief Justice in his place.” Chief Justice K.B.N. Singh, however, informed the Chief Justice of India that his mother was bedridden and was not in a position to go with him to Madras and that if his transfer was insisted upon, he would prefer to resign, The Chief Justice of India requested him not to act in haste and to give the matter a close thought, Chief Justice K.B.N. Singh thereafter met the Chief Justice of India in New Delhi in the evening of 8th Jan., 1981 and discussed the question of his proposed transfer with him for some time. When Chief Justice K.B.N. Singh mentioned his difficulty in regard to his mother’s advanced age and illness, the Chief Justice of India told him that he was unable to agree with him “since there were available persons in his family who could look after his mother and in any case, his brother S.B.N. Singh who was practising in the High Court was quite capable of looking after the mother. “Chief Justice K.B.N. Singh, however, informed the Chief Justice of India that his mother has a special attachment to him and he could not leave her to the care of his brother or other members of his family. Chief Justice K.B.N. Singh then told the Chief Justice of India that certain persons connected with the High Court who were influenced by communal considerations, had made some baseless complaints against him and that he on his part did not permit communal or any other extraneous considerations to influence him administratively or judicially. The Chief Justice of India, however, assured Chief Justice K.B.N. Singh that he did not hold that Chief Justice K.B.N. Singh himself was to blaim, but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Chief Justice K.B.N. Singh thereafter left and on the next day that is, 9th Jan., 1981, the Prime Minister endorsed her decision on the file in regard to transfer of Chief Justice K.B.N. Singh to the Madras High Court and the formal order effecting such transfer was made on 19th Jan., 1981.
113. It is extremely difficult on these facts to hold that there was full and effective consultation between the Central Government and the Chief Justice of India. The burden of showing that there was full and effective consultation rests heavily on the Government and it is not possible to say that this burden has been discharged by the Government. I have already referred to the correspondence exchanged between the Chief Justice of India and the Law Minister and there is nothing in it which shows that any facts bearing upon the transfer of Chief Justice K.B.N. Singh were communicated by the Chief Justice of India to the Law Minister, We were informed by the learned Solicitor General on an enquiry made by us that there is also nothing in the notings which’ might indicate even remotely that any such facts were communicated by the Chief Justice of India to the Law Minister or to the Prime Minister or to any other high level constitutional functionary of the Central Government. The only statement which we have on this point is the one made by the Chief Justice of India in his counter-affidavit, namely, that “every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer.” This statement, even B it be accepted as wholly correct, is, in my opinion, not sufficient to discharge the burden which lies upon the Government to show that there was full and effective consultation, In the first place, it does not say who was the constitutional functionary on behalf of the President with whom “every relevant aspect of that question was discussed.” Did the Chief Justice of India discuss the matter with the President personally, though, of course, a statement was made to us on behalf of the President that he had no discussion with the Chief Justice of India in this respect or did he discuss with the Prime Minister or did he discuss with the Law Minister? We are not informed as to who was the person with whom the discussion took place and unless the name of the person is mentioned, I do not see how the correctness of the statement can be verified or challenged by the other side. It is not enough merely to repeat the constitutional formula that every aspect of the question was discussed with the President, It is an affidavit which is made by the Chief Justice and the affidavit must contain not merely the constitutional incantation but facts giving particulars stating with whom the Chief Justice of India had discussion. The affidavit also does not give the date or dates when the discussion took place between the Chief Justice of India and the President, ‘ The statement made in the affidavit is delightfully vague, ACCording to this statement, the discussion look place “both before and after I proposed the transfer”. This would mean that the discussion could have taken place at any time before 20th Dec., 1980 or at any time alter 20th Dec. 1980 up to 9th Jan., 1981. How can Chief Justice K.B.N. Singh possibly meet such a vague allegation? I personally fail to see why if the Chief Justice of India had discussion with the Law Minister or the Prime Minister in regard to the proposed transfer of Chief Justice K.B.N. Singh, the Chief Justice of India could not give us the data or dates when such discussion took place, because surely he must be having some record in regard to his meetings with the Law Minister or the Prime Minister. Then again, the statement in the affidavit merely says that every relevant aspect of the question was discussed, but does not indicate what aspects were discussed. It is for the Court to decide whether all relevant facts were discussed between the Chief Justice of India and the Central Government so as to constitute full and effective consultation and this enquiry cannot be pre-empted by the Chief Justice of India by asserting in his affidavit that every relevant aspect of the question was discussed by him with the Central Government. It is not for the Chief Justice of India to decide, but it is for the Court to be satisfied, that all relevant aspects of the question were discussed by him with the Central Government. It is possible that the Chief Justice of India might have considered some facts as irrelevant and not discussed them with the Central Government, but the Court may find that such facts were relevant and should have formed the subject matter of discussion and it is equally possible that some facts might have been discussed which the Chief Justice of India considered relevant but the Court might find them to be irrelevant. We are not told by the Chief Justice of India as to what were the facts discussed by him with the Central Government and in the absence of this information, it is not possible for us to conclude that there was full and effective consultation between the Chief Justice of India and the Central Government.
114. There is also another infirmity from which the process of consultation suffers. It was on 8th Jan., 1981 that Chief Justice K.B.N. Singh discussed with the Chief Justice of India the difficulty arising from his mother’s advanced age and illness and when the Chief Justice of India pointed out to him that his brother and other family members were there to look after his mother, he explained to the Chief Justice of India that his mother had a sentimental attachment to him and he could not leave her to the care of his brother or other members of the family. There is nothing to show that this particular difficulty of Chief Justice K.B.N. Singh was brought to the notice of the Central Government by the Chief Justice of India before the decision was taken by the Prime Minister on 9th January, 1981, to transfer Chief Justice K.B.N. Singh. The meeting between Chief Justice K.B.N. Singh and the Chief Justice of India took place at 7.00 p.m. on 8th January, 1981 and on the next day, the Prime Minister made her endorsement on the file and there is absolutely nothing to show, nothing even in the counter-affidavit of the Chief Justice of India, that after his talk with Chief Justice K.B.N. Singh, he telephoned either to the Law Minister or to the Prime Minister pointing out this particular difficulty of Chief Justice K.B.N. Singh to the Central Government. There is nothing even in any nothings on the file showing that any such information was conveyed by the Chief Justice of India to the Law Minister or to the Prime Minister in the evening of 8th Jan., 1981 or on 9th Jan., 1981. This omission to communicate the difficulty which would be experienced by Chief Justice K.B.N. Singh as a result of transfer is sufficient to vitiate the process of consultation and it must be held that there was no full and effective consultation as required under Article 222 Clause (1).
115. We may now examine the reasons for which Chief Justice K.B.N. Singh was transferred to the Madras High Court. Two reasons were given by the Chief Justice of India to Chief Justice K.B.N. Singh in the course of the telephonic talk which took place on 5th Jan., 1981. One was that the transfer was being made on account of Government policy and the other was that since Chief Justice M.M. Ismail was being transferred from Madras, it was necessary to appoint an experienced and senior Chief Justice in his place. So far as the first reason is concerned, I find it rather difficult to appreciate it. The Government policy which the Law Minister put forward was that there should be Chief Justice from outside in every High Court, but the Chief Justice of India in his letter dated 7th Dec., 1980 expressed his firm opposition to this Government policy and stated that transfers of Chief Justices “may be made in appropriate cases for strictly objective reasons,” and it was in pursuance of this view taken by him that he recommended the transfer of Chief Justice K.B.N. Singh. The Chief Justice of India did not recommend the transfer of Chief Justice K.B.N. Singh pursuant to the Government policy because he was firmly opposed to that policy, but he recommended the transfer because he thought that for strictly objective reasons, it was necessary to transfer Chief Justice K.B.N. Singh. Then, how could the Chief Justice of India tell Chief Justice K, B, N. Singh that he was being transferred on account of Government Policy. The second reason given by the Chief Justice of India is also a little intriguing. If Chief Justice K.B.N. Singh was proposed to be transferred to Madras Because it was necessary to appoint an experienced and senior Chief Justice in place of Chief Justice M.M. Ismail, why, may I ask was he proposed for transfer to the Rajasthan High Court? This reason could not possibly apply to the proposed transfer to the Rajasthan High Court. There is no doubt that Chief Justice K.B.N. Singh was proposed to be transferred not because he was a senior and experienced Chief Justice who was required to man the High Court of Madras in place of Chief Justice M.M. Ismail but because the Chief Justice of India was of the view that he should be moved out of the Patna High Court.
116. Then, in the course of the discussion at the meeting which took place on 8th Jan., 1981, the Chief Justice of India stated to Chief Justice K.B.N. Singh that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. I do not know whether this statement was made by the Chief Justice of India by way of furnishing to Chief Justice K.B.N. Singh the reason why he was being transferred because I do not find it so stated in the counter affidavit of the Chief Justice of India. But even if it be assumed that this was the real reason why Chief Justice K.B.N. Singh was sought to be transferred from the Patna High Court, I cannot say whether this reason was communicated by the Chief Justice of India to the Central Government because there is nothing in the correspondence or in the nothings showing that any such communication was made by the Chief Justice of India to the Central Government, nor does the counter affidavit of the Chief Justice of India throw any light on this point beyond making a vague and indefinite statement which I have already discussed. This circumstance would also show that there was no full and effective consultation. But assuming that this reason was communicated by the Chief Justice of India to the Central Government and it weighed with the Central Government in making the order of transfer; it would, I am afraid, have the effect of converting the transfer into a penal transfer. It is undoubtedly true that the Chief Justice of India told Chief Justice K.B.N. Singh that he was not personally to blame, but if he was by his passive inaction allowing certain persons — and certain persons in this context must mean his close relatives — to take advantage of their proximity to him and he was being transferred on that account, it would certainly be a transfer for a reason related to his conduct or behaviour. But quite apart from that, I find that this is not the reason which weighed with the Central Government in making the order of transfer against Chief Justice K.B.N. Singh. The Central Government stated in a note handed over by the learned Solicitor General to the Court that the reason why the Central Government made the order of transfer was; “(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.” This reason which prevailed with the Central Government was totally different from the reason which induced the Chief Justice of India to make his proposal for transfer and there is nothing to show that this reason which weighed with the Government of India was communicated to the Chief Justice of India for his opinion. There was therefore clearly no full and effective consultation even in regard to this aspect. Moreover this reason given by the Central Government for making the order of transfer clearly shows that the Central Government did not apply its mind to the question whether on the facts, it was necessary or expedient to transfer Chief Justice K.B.N. Singh, but accepted the recommendation of the Chief Justice of India, because it thought that if the recommendation of the Chief Justice of India was accepted and the transfers of Chief Justice M.M. Ismail, and Chief Justice K.B.N. Singh were made, it would be easier for the Central Government thereafter to press for acceptance of the government policy by the Chief Justice of India. There was in my opinion, clearly abdication of its constitutional function by the Central Government. The order of transfer of Chief Justice K.B.N. Singh to the Madras High Court must therefore be held to be unconstitutional and void.
117. I would, therefore, allow the second group of writ petitions in so far as they challenge the constitutional validity of the order transferring Chief Justice K.B.N. Singh and issue a writ declaring the order of transfer of Chief Justice K.B.N. Singh as unconstitutional and void.
118. There will be no order as to costs in both the groups of writ petitions. There will also be no order on the special leave petition, A.C. Gupta, J.
119. This batch of writ petitions raises broadly two issues:
(i) whether on the expiry of the term of office of an additional Judge of a High Court it is permissible to drop him by not giving him another term though the volume of work pending in the High Court requires the services of another Judge; and
(ii) in what circumstances a Judge of a High Court can be transferred to another High Court.
A number of other matters connected with these questions, directly or remotely, were discussed at length at the hearing of the petitions, As I happen to agree with the conclusions reached by one or another of my learned .brethren on the different questions that arise for decision, I shall deal with only some aspects of the controversy. It is necessary at the outset to state two propositions on which there is no controversy; one is that the independence of the judiciary is a cardinal principle of our Constitution, and the other is that an additional Judge of a High Court is not appointed on probation. The first proposition needs a little elaboration. Independence of the judiciary does not mean freedom of the Judges to act arbitrarily, it means that the Judges must have freedom in discharging their judicial functions. In order to maintain the independence of the judiciary it has to be protected against interference, direct or indirect; it also follows that the constitutional provisions should not be construed in a manner that would tend to undermine this independence.
120. The first of the two questions set out above arises on the decision of the Union of India not to extend the tenure of Shri S.N. Kumar, an Additional Judge of the Delhi High Court, on the expiry of his initial term of office. Shri Kumar was appointed an Additional Judge of the Delhi High Court for a period of two years He assumed the charge of his office on March 7, 1979. On Feb. 19, 1981, a few days before Shri Kumar’s term of office was to expire, the Chief Justice of the Delhi High Court wrote to the Union Law Minister saying that it was his “very painful duty not to recommend an extension for Justice Kumar” as he had been receiving “persistent” and “serious complaints” against Shri Kumar. The Chief Justice of India to whom a copy of this letter was sent wanted to look carefully into the charges against Shri Kumar and accordingly advised extension of his term by a period of six months, Ultimately on the recommendation of the Law Minister Shri Kumar’s tenure as Additional Judge of the Delhi High Court was extended by three months commencing from March 7, 1981; at the end of this period the Chief Justice of India took a different view from the Chief Justice of the High Court and in a letter to the Law Minister written on May 22, 1981 he said that he had “made independent enquiries in regard to Justice Kumar’s integrity” and that “Not one member of the Bar or of the Bench doubted the integrity of justice Kumar” and that “on the other hand, several of them stated that he is a man of unquestioned integrity”, However, in a note recorded on the relevant file on May 27, 1981 the Law Minister said “In the matter of assessment of integrity, I prefer that the views of C.J. Delhi be given credence” and recommended that “Shri Justice S.N. Kumar may not be continued any further as Additional Judge of the Delhi High Court after the expiry of the present tenure on 7-6-1981”. Shri Kumar’s tenure of office as an Additional Judge thus ended, In the aforesaid letter dated Feb. 19, 1961 written by the Chief Justice of the High Court to the Law Minister, the Chief Justice had also said: “Normally, extension of the tenure of an Additional Judge is recommended keeping in view the pendency In Court. The pendency in this Court still justifies the appointment of Additional Judges”.
121. In my opinion the decision not to Extend Shri Kumar’s term of office as an Additional Judge was invalid and unconstitutional on several grounds. The first ground is that when the question before the concerned authorities was whether the term of an Additional Judge should be extended and the volume of work pending in the High Court admittedly required the services of another Judge, it was not permissible to refuse extension on the basis of unconfirmed reports. The scheme of the constitutional provisions does not warrant such a course of action. Under Article 217(1) of the Constitution the President, before he appoints a person as a Judge of a High Court, whether permanent or additional, has to consult these functionaries: 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. A permanent Judge holds office until he attains the age of 62 years. The tenure of an Additional Judge, Article 217(1) says, is as provided in Article 224(1). Article 224 provides that the President may appoint duly qualified persons to be Additional Judges if it appears to him that “by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein” the number of the Judges of the court “should be for the time being increased” and that the appointment of Additional Judges shall be for a period not exceeding two years, It is thus clear that the appointment of an Additional Judge depends on the volume of work pending in the court. The maximum period of two years was fixed presumably to introduce a measure of uniformity and to serve as a check on the number of such appointments because the appointment of Additional Judges was apparently considered as an exceptional measure to meet a particular situation when Article 224 in its present form was introduced in the Constitution in 1956, As things stand at present, however, this seems to have become a regular feature as would appear from the chart supplied during the hearing of these petitions showing the number of permanent and Additional Judges in the different High Courts. There can be no dispute however that the continuance of an Additional Judge in office is conditional upon the continued existence of arrears in a High Court. Except that the tenure of an Additional Judge is limited depending on the arrears of work or the temporary increase in the business of a High Court, the position and powers of an Additional Judge and a permanent Judge are the same. Qualifications required of a person for appointment as a Judge of a High Court as stated in Article 217(2) are the same for both. Article 221(1) read with the Second Schedule which provides for the salaries payable to the Judges of the High Court makes no distinction between an Additional and a permanent Judge. Clause (4) and (5) of Article 124 provide the procedure for the removal of a Judge of the Supreme Court from his office and Article 218 makes these provisions applicable in relation to the Judges of a High Court. Here also there is no special provision for Additional Judges; it cannot be suggested that an Additional Judge of a High Court cannot be removed from office. The oath of office which a Judge has to take before assuming office is also the same for both.
122. I have already referred to the provisions of Article 217(1) which provides that the President must consult the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court concerned before appointing a person as a Judge of a High Court, whether permanent or additional. Naturally, the fitness of a person to be appointed a Judge has to be considered by the three functionaries and this fitness test is applicable to both permanent and additional Judges. Fitness must include both capacity and integrity. It is admitted in the affidavit sworn on July 22, 1981 by Shri K.C. Kankan, Deputy Secretary in the Department of Justice, Ministry of Law, Justice and Company Affairs, and filed on behalf of the Union of India that an Additional Judge is not a Judge on probation. To say that an Additional Judge is not on probation means that his appointment is not a tentative appointment, it is not for trying out if he is fit to be a permanent Judge. An Additional Judge is appointed for a certain period to cope with the temporary increase and the pending arrears of work in a High Court. Therefore, if the volume of work still pending in the High Court justifies the appointment of an Additional Judge, when the term of an Additional Judge is about to expire, there seems to be no reason why the Judge should not be appointed for another term. Shri Kankan’s affidavit however adds. “It is denied that the appointments of Additional Judges should always be for a period of 2 years unless the amount of business or arrears of work do not warrant the appointment for that period. It, is submitted that the 2-year period is the ceiling mentioned in Article 224 and that the President is competent to appoint all or any Additional Judges for any shorter period as he may consider Justified.” This claim of absolute power for the Government is not acceptable. The argument is that Article 224 only fixes an outer limit of time, and the President is therefore free to appoint Additional Judges for varying periods of time not exceeding 2 years — for three months or six months — as he ‘pleases without reference to the volume of work pending in the High Court. Such a claim is untenable on the language of Article 224 and militates against the conception of independence of the judiciary. The independence of the judiciary depends to a great extent on the security of tenure of the Judges. If the Judge’s tenure is uncertain or precarious, it will be difficult for him to perform the duties of his office without fear or favour. On a proper reading of Article 224(1) it must be held that the tenure of an Additional Judge is not uncertain or precarious but it is conditional on the existence of arrears in the High Court which is an objective condition of fact. It was pointed out on behalf of the petitioners that the practice has always been to appoint an Additional Judge for a further period on the expiry of his previous term if the pending work in the High Court required the services of an Additional Judge and to appoint the seniormost among the Additional Judges as a permanent Judge when a vacancy was available. The existence of such practice could not be denied However, as an Additional Judge has to be appointed again on the expiry of his initial term, Article 217(1) is attracted. The fitness of the Judge had been considered at the time of his initial appointment what then should be the scope of consultation when the appointment of an Additional Judge for another term is contemplated? In my opinion it reasonably follows that in such a case the scope is limited to an enquiry as to the volume of work pending in the High Court and the time likely to be required to dispose of the arrears. If his initial appointment was not on probation, the Judge’s capacity and integrity cannot come within the scope of the consultation necessary under Article 217(1) for giving him another term on the expiry of his previous term of office.
123. A question then arises, whether the Judge should be appointed for another term if there are complaints against him regarding his integrity. If the complaints are serious and are from a responsible source, they cannot certainly be Ignored. But, as pointed out by Mr. Seervai appearing for the petitioners in Transfer Case No. 22 of 19R1 which is Writ Petn. No. 527 of 1981 filed in the Bombay High Court that the allegations cannot be presumed or assumed to be true and have to be proved. In his letter written to the Law Minister on Feb. 19, 1981 the Chief Justice of the Delhi High Court while stating that it was his “very painful duty not to recommend an extension for Justice Kumar”, added that he had “no investigating agency to conclusively find out whether the complaints are genuine or not”. That being so, the only reasonable course open, which doss not undermine the independence of the judiciary was to appoint the Judge for another term having a rational nexus with the volume of arrears pending in the High Court and then proceed with an enquiry into the allegations and remove the Judge if the allegations were found true, in accordance with the procedure laid down in Clause (4) and (5) of Article 124 read with Article 218. I do not think the language of Article 224(1) permits short term extensions of the tenure of an Additional Judge to enable the authorities to complete investigation into the allegations against him. That being so there seems to be no possible alternative to what has been suggested above as the proper course to follow. In the case of Shri Kumar, admittedly there has been no real investigation into the complaints against him, Possibly conscience of this position the Chief Justice of the Delhi High Court in a letter to the Law Minister written on May 7, 1981 said ” To my mind, the reputation of integrity is just as important as a person actually being above-board”. This statement should then apply to both additional and permanent Judges, but a permanent Judge cannot be removed from office on the ground that his reputation is bad. From long practice, mentioned earlier, an additional Judge has a legitimate expectancy, if not a right, to be appointed for another term if the pending business in the High Court requires the services of an Additional Judge, or as a permanent Judge, when a vacancy is available, if he is the senior-most of the Additional Judges. Refusing to appoint him again when the conditions required an appointment to be made means in substance his removal, To remove a permanent Judge the prescribed procedure must be followed and the allerations against him proved; dropping an Additional Judge at the end of his initial term of office on the ground that there are allegations against him without properly ascertaining the truth of the allegations may be expedient but it is destructive of the independence of the judiciary. This would be an easy way for the executive to get rid of an inconvenient Judge. Taking into consideration all these aspects. I am of the view that the scope of consultation contemplated in Article 217(1), when the question is whether an Additional Judge should be given another term, is limited to the enquiry whether the volume of work pending in the High Court requires his re-appointment.
124. Assuming that the scope of consultation under Article 217(1) is the same for the initial appointment of an Additional Judge and also for his appointment for another term, it seems to me that there has been no proper consultation in the case of Shri Kumar, In Union of India v. Sankalchand Himatlal Sheth , Chandrachud J., explained what consultation means within the meaning of Article 222(1) which provides that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to another High Court, What is said in that case should apply also to ‘consultation’ for the purpose of Article 217(1). It is observed in Sheth’s case: “…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.”
125. From the facts appearing from the correspondence that passed between the Chief Justice of India and the Chief Justice of the High Court, the Chief Justice of the High Court and the Law Minister, and between the Chief Justice and the Law Minister, it would appear clearly that there has been no complete and effective consultation on the question whether Shri Kumar’s term as an additional Judge of the Delhi High Court should be extended. It will be convenient for a proper appreciation of the matter to set out chronologically the gist of the letters that passed between the constitutional functionaries in Shri Kumar’s case and certain other facts:
19-2-1081. The Chief Justice of the Delhi High Court wrote to the Union Law Minister that it was his “very painful duty not to recommend an extension for justice Kumar” because there had been “serious complaints against Mr. Justice S.N. Kumar, both oral and in writing. These complaints have been received by me direct as well as through you. I have examined these complaints and find that some of the complaints are not without basis. Responsible persons of the Bar and some of my colleagues, whom I would rather not name, have also complained about Mr. Justice Kumar. I have no investigating agency to conclusively find out whether the complaints are genuine or not. All the same the complaints have been persistent,” It was added that “Mr. Justice Kumar has also not been very helpful in disposing of cases. Some responsible members of the Bar and some of my colleagues have also expressed doubts about Justice Kumar’s integrity.” The Chief Justice prefaced his statement about the complaints against Justice Kumar by saying: “Normally, extension of the tenure of an Additional Judge is recommended keeping in view the pendency in Court. The pendency in this Court still Justifies the appointment of Additional Judges.” The point to note in this letter is that it does not mention the facts constituting the basis of the complaints against Shri Kumar.
3-3-1981. 126. A copy of this letter was sent to the Chief Justice of India and on March 3, 1981 the Chief Justice of India recorded this note on the relevant file: “I would like to look carefully into the charges against Shri S.N. Kumar. The letter of the Delhi Chief Justice dated February 19, 1981 seems to me too vague to accept that Shri Kumar lacks integrity”. The Chief Justice of India recommended extension of Shri Kumar’s term of office by six months. The term of office of Shri Kumar was to expire on March 7, 1981.
19-3-1981: The Law Minister in his letter to the Chief Justice of the High Court referred to the observations of the Chief Justice of India that the charges against Shri Kumar appeared to be “too vague” and asked for “further comments” from the Chief Justice of the High Court “on the question of continuance or otherwise of Shri Justice S.N. Kumar”. 26-3-1981: The Chief Justice of the High Court and the Chief Justice of India had a discussion over Shri Kumar’s case. 28-3-1981: The Chief Justice of the High Court wrote to the Law Minister saying that he had had “an opportunity to discuss the entire matter in detail with the Chief Justice of India” and that after the discussion he had also addressed a letter to the Chief Justice of India. The Chief Justice ended the letter by saying: “Perhaps you will consider this to be sufficient ‘comments’ on my part as desired by you in your letter under reply (letter dated 19-3-1981) about the observations of the Chief Justice of India which you have quoted in your letter,”
127. The letter that the Chief Justice wrote to the Chief Justice of India on the same day refers to the three points mentioned in his letter dated 19-2-1981 addressed to the Law Minister repeating that he had “no investigating agency to conclusively find out whether the complaints are genuine or not”. The letter ends as follows: “With regard to the complaints about Justice Kumar’s integrity and general conduct, the matter has already been discussed between us, About Justice Kumar not being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980.” 15-4-1981: The Law Minister wrote to the Chief Justice of the High Court in reply to the letter dated March 28, 1981. Among other things, the Law Minister in this letter said: “It is true that you have no investigating agency to conclusively establish the truth of complaints. Nevertheless, you must have had some material which provided the basis on which you concluded that Justice Kumar’s reputation for integrity was not above board….In view of the observations of the Chief Justice of India asking for concrete material, it would be necessary for us to have it with your comments.”
7-5-1981: In answer to the Law Minister’s letter of 15-4-1881 the Chief Justice of the High Court wrote back saying that in regard to the allegations against Shri Kumar, he had discussed the matter with the Chief Justice of India and had also written to him. “Accordingly”, the Chief Justice wrote, “it is not only embarrassing but painful for me to write this letter. As you, however, desire to know what material provided the basis for me to conclude that Justice Kumar’s Integrity was not above board, I give below some facts”. The facts which the Chief Justice mentioned in the letter are:
(i) In the first half of 1980 when he was not the Chief Justice “chance remarks” came to his knowledge about Shri Kumar’s “conduct in Court as well as about his integrity” when Justice Kumar was doing mostly original side work sitting singly and that in early May of the same year one of his colleagues had told me that he had “information with him to the effect that if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an insurance company would be decided in favour of that party.”
(ii) As Acting Chief Justice he constituted the Benches for the second half of 1980 putting Justice Kumar in a Division Bench on the Appellate Side which he thought “was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge”. However “Justice Kumar did not release the original suits, regarding which allegations had been made, from his board”. The particulars of the suits and the names of the parties were mentioned in the letter.
(iii) In August 1980 the same “colleague Of his who had talked to him earlier regarding Shri Kumar’s integrity and another colleague mentioned that “doubts were being expressed about the integrity of Justice Kumar vis-a-vis the aforesaid cases and some others.” He made discreet inquiries from some of the leading counsel and they in strict confidence supported the allegations. Looking into the matter more carefully he found that “it was not only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench….In some of these the parties involved were rich and influential including former princes.”
128. The Chief Justice added that these “unconfirmed reports” made him “conclude that the reputation for integrity of Justice Kumar was not what should be for a Judge of the High Court. To my mind, reputation of integrity is just as important as a person actually being above board.” The Chief Justice also mentioned certain figures to show the rate of disposal of cases by the Division Bench of which Justice Kumar was a member.
129. It seems from what the Chief Justice of the High Court said in his letter of May 7, 1981 that he had not recommended extension of Justice Kumar’s term not really because he found the reports against Shri Kumar were true — he had admittedly no “investigating machinery” — but because he thought that reputation of integrity is as important as a man being actually above board. I have already said that this is a view which will undermine the independence of the judiciary.
130. The letter of May 7, 1981 written by the Chief Justice of the Delhi High Court to the Law Minister was marked “SECRET (For Personal Attention Only)”. It appears from a subsequent letter addressed by the Law Minister to the Chief Justice of the High Court on May 29, 1981 that a few days after the letter of May 7 was written, the Chief Justice of the High Court had requested the Law Minister to keep that letter a secret from the Chief Justice of India. The letter of May 29 discloses that the Chief Justice of the High Court mentioned three reasons for not disclosing the letter to the Chief Justice of India. The reasons as appearing from the Law Minister’s letter are as follows:
1. …the reasons stated in the opening portion of your letter dated 7th May, 1981, Probably the reference is to the following lines of the 7th May letter written .by the Chief Justice of the High Court:
Hon’ble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S.N. Kumar and the same were communicated to me by you for my comments in your D.O. No. 50/2/81-Jus., dated 19th March, 1981. The Chief Justice had also written to me a letter dated 14th March, 1981 asking for “details and concrete facts in regard to the allegations against Justice Kumar.” As I wrote to you in my D.O. No. 293-HCJ/PPS, dated 28th March, 1981, I discussed the matter with Hon’ble the Chief Justice and as desired by him, in reply to his letter, wrote my D.O. No. 292-HCJ/PPS, dated March 28, 1981, a copy of which was forwarded to you. Accordingly, it is not only embarrassing but painful for me to write this letter. As you, however, desire to know what material provided the basis for me to conclude that Justice Kumar’s integrity was not above board, I give below some facts.
2. You felt highly embarrassed as the contents of your letter dated 19th February, 1981 about Shri Kumar came clearly to be known to Shri S.N. Kumar and some of his colleagues on the Bench. You felt that the contents of your letter dated 7th May, 1981 might also get known to them and cause you further embarrassment.
3. You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of February 19, 1981, The letter of May 29 concludes by saying that in view of the fact that the Chief Justice of the High Court was keen on keeping the letter “confidential from the Chief Justice of India”, the letter was not shown to him, Whether the reasons for not disclosing the letter of May 7 to the Chief Justice of India were valid or not, it is clear that the Chief Justice of India was not apprised of the particulars contained in the letter of May 7 concerning Justice Kumar’s integrity. It was argued on behalf of the Union of India and the Law Minister that it must be presumed that all the details were placed before the Chief Justice of India because the Chief Justice of the High Court in his letter dated March 28, 1981 addressed to the Law Minister had stated that he “had an opportunity to discuss the entire matter in detail with the Chief Justice of India” and that in another letter written on the same day to the Chief Justice of India he had said:
With regard to the complaints about Justice Kumar’s integrity and general conduct, the matter has already been discussed between us.
That this presumption is wrong would appear from the following facts. On May 21, 1981 the Law Minister had written a letter to the Chief Justice of India when he was in Simla Paragraphs 3, 5 and 6 of this letter read as follows:
3. In regard to complaints regarding Justice Kumar’s integrity and general conduct, the Chief Justice of the High Court discussed the matter with you as mentioned in his D.O. letter No. 292-HCJ, dated 28th March, 1981, to you, a copy of which he had sent to me. In that letter he had also mentioned the disposals of Justice Kumar.
4. x x x
5. You will please see that in your advice doted 3rd March, 1981 you desired to look carefully into the charges against Shri S.N. Kumar. In terms thereof if you were pleased to make any inquiries, I shall be grateful to have the details.
6. I would be grateful for your urgent advice in regard to the continuance or otherwise of the terms of Justice S.N. Kumar….
There is no reference here to the letter of May 7 from the Chief Justice of the High Court. The Chief Justice of India replied to this letter next day, May 22, 1981 from Simla, The relevant portions of the letter are as follows:
Shri Prakash Narain, Chief Justice of the Delhi High Court, had written a letter dated February 19, 1981 to you, a copy of which was sent to me, The Chief Justice had recommended in that letter that Justice Kumar’s appointment should not be extended further for three reasons: (1) that serious complaints were received against Justice Kumar orally as well as in writing; (2) that Justice Kumar was not very helpful in disposing of cases) and (3) that some responsible members of the Bar and Bench had expressed doubts about Justice Kumar’s integrity, By my letter dated March 14, 1981 to the Delhi Chief Justice I requested him to furnish further details and concrete facts in regard to the allegations against Justice Kumar since the result of the enquiries made by me was quite at variance with what the Chief Justice had stated in his letter of March 19.
The Chief Justice met me on March 26, 1981 when he told me that Justice Kumar was very slow in his disposals and that he doubted his integrity because even after Justice Kumar’s allocation was changed from the original side to the appellate side,” he still continued to hear the part-heard cases on the original side. The Chief Justice did not mention anything adverse in regard to Justice Kumar’s political leanings or affiliations By my request the Chief Justice promised to send a statement showing the disposals of Justice Kumar.
I have made the most careful and extensive enquiries in regard to both of these matters and I am satisfied that there is no substance in any one of them. I have with me a detailed statement of the disposals of Justice Kumar from which it would appear that no charge can be made against him that he is slow in his disposals.
As regards the complaint of the Chief Justice that Justice Kumar’s integrity was doubtful since he continued to take old part-heard matters even after the allocation of his work was changed. I have made enquiries not only from members of the Bar but from the sitting Judges of the Delhi High Court which show 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 partheard cases on which a substantial amount of time has been already spent. Justice Kumar, therefore, did nothing But of the way or unusual in taking up part-heard cases after the allocation of his work was changed.
I find it, therefore, difficult to agree that Justice Kumar’s term should not be extended for the reasons mentioned by the Chief Justice of the Delhi High Court. I disagree with the learned Chief Justice, on enquiries made by me, that Justice Kumar is either slow in his disposals or that his integrity is doubtful.
I must mention that I also made independent enquiries in regard to Justice Kumar’s integrity generally and apart from the reason for which the learned Chief Justice thought that Justice Kumar lacked integrity. Not one member of the Bar or of the Bench doubted the integrity of Justice Kumar. On the other hand, several of them stated that he is a man of unquestioned integrity.” However, on May 27, 1981 the Law Minister recorded a note in the relevant file recommending that “Shri Justice S.N. Kumar may not be continued any further as Additional Judge of the Delhi High Court after the expiry of the present tenure on 7-6-1981”. It appears from this note that in making this recommendation, the Law Minister confined himself only to Shri Kumar’s reputation. The portion of the note relevant for the present purpose reads:
C.J.I. does mention that C.J. Delhi met him on 26-3-198l. He also refers about the 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. I presume that when C.J. Delhi and the C.J. of the Supreme Court met, the former must have informed the latter about the details that he had mentioned to me in his letter dated 7-5-1981. This presumption is raised on the basis of the letters from the Chief Justice, Delhi….The C.J.I, in his advice proceeds from the premises that taking up part-heard cases after the allocation of work is changed does not amount to lacking in integrity. If it were that simple I would not have joined issue, but the details furnished by the C.J. Delhi in his letter dated 7-5-1981 go farther.
xx xx xx xx In the matter of assessment of integrity, I prefer that the views of C.J. Delhi be given credence as it is in his association that the Judge concerned discharges his duties and that he has a better occasion and opportunity to watch his working and conduct. The correspondence from the C.J. of Delhi addressed to me furnishes clear details which cannot easily be brushed aside.
131. Taking the last paragraph of the note first, I find it difficult to see how, because the Chief Justice of the High Court had a “better occasion and opportunity” to watch “his (Justice Kumar*s) working and conduct”, he was in a better position to come to a correct conclusion as to the Judge’s integrity, if all the facts concerning the matter were also placed before the Chief Justice of India; it is not like watching the demeanour of a witness to test his credibility. As regards the statement that the letter from the Chief justice of the High Court furnished “clear details which cannot easily be brushed aside”, the details are only particulars of certain suits that Justice Kumar had dealt with, but it is difficult to follow what is sought to be conveyed by saying that these cannot “easily be brushed aside”. Mere details of the suits can indicate nothing regarding Justice Kumar’s integrity. If however ‘by details’ the unconfirmed reports against Justice Kumar-were also sought to be included, no reasonable person could accept them 16 true without proof. As regards the earlier portion of the note quoted above, the presumption that the Chief Justice of the High Court must have informed the Chief Justice of India about the details that the former had mentioned in his letter dated May 7, 1981 addressed to the Law Minister does not appear to have any basis. It is true the Chief Justice of the High Court in his two letters dated March 28, 1981 written respectively to the Law Minister and the Chief Justice of India had said that the “entire matter” concerning Justice Kumar’s integrity had been discussed between him and the Chief Justice of India but it would be wrong to assume, though the Chief Justice of the High Court spoke of the “entire matter”, the particulars of the suits and the allegations against Justice Kumar concerning them were placed before the Chief Justice of India. What was discussed between the two would appear very clearly from the letter addressed by the Chief Justice of India to the Law Minister on May 22, 1981. I have quoted above relevant extracts from this letter. It is plain from this letter that when the Chief Justice of the High Court met the Chief Justice of India on March 26, 1981 the only thing that he disclosed was the alleged impropriety of Justice Kumar’s conduct that “even after Justice Kumar’s allocation was changed from the original side to the appellate side, he still continued to hear the part-heard cases on the original side” and that “he continued to take old part-heard matters even after the allocation of his work was changed”. There is no mention of the other allegations against Justice Kumar concerning these part-heard matters. It is impossible to think that if the details that the Chief Justice of the Delhi High Court mentioned in his letter of May 7, 1981 addressed to the Law Minister for his “personal attention only” were disclosed to the Chief Justice of India he would not have referred to them in his letter on May 22. It further appears from the affidavit of Shri Kumar, sworn on July 17, 1981, that the Chief Justice of the Delhi High Court had not asked him any question or called for any explanation or clarification from him regarding the allegations against him, but the Chief Justice of India had a discussion with him only with regard to the allegations that he was slow in his disposal and that it was improper for him to continue to deal with the original side matters heard in part by him while sitting on the appellate side. It is also impossible to think that the Chief Justice of India though apprised of the allegation of corruption against Shri Kumar would not ask for his explanation on this serious charge and discussed only the minor allegations against him.
132. As part of the relevant material was withheld from the Chief Justice of India it must be held that there was no full and effective consultation as contemplated in Article 217(1) and this vitiates the decision not to extend Shri Kumar’s term of office as an Additional Judge of the Delhi High Court though the volume of pending work in that High Court required the services of another Judge.
133. In any event, even assuming that the Chief Justice of the Delhi High Court had informed the Chief Justice of India of the allegation of corruption against Shri Kumar, it is clear that it was not disclosed to Shri Kumar and he was not given an opportunity to explain the charge against him. Assuming again that Shri Kumar had no legal right to have his term extended, he had at least a legitimate expectation that his tenure as an Additional Judge would continue following the usual practice, and it appears from the letter of the Chief Justice of the Delhi High Court written to the Law Minister on February 19, 1981 that but for the allegations against him, Shri Kumar would have got an extension of his tenure as an Additional Judge in view of the arrears of work in the Delhi High Court. Consistent with the principles of natural Justice Shri Kumar who had undoubtedly suffered an injury by his term of office not being extended should have been given an opportunity to explain the charge of corruption against him. The principles of natural justice apply even to a person who has no legal right. (See In re H.K. (An Infant); (1967) 2 QB 617). The decision against Shri Kumar cannot be sustained on this ground as well.
134. As stated above, in reaching the decision not to extend Shri Kumar’s tenure of office, the Law Minister preferred the opinion of the Chief Justice of the Delhi High Court to that of the Chief Justice of India on the view that the Chief Justice of the High Court had “better occasion and opportunity” to watch his working and conduct. As I have already said, this is a view which has no valid basis. Under Article 217(1) the President, before appointing a person as a Judge of a High Court has to consult three functionaries, the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court; for the appointment of the Chief Justice of the High Court, the President has to consult the Chief Justice of India and the Governor of the State. The controversy is over the question whether the opinion of the Chief Justice of India should have primacy Or the three functionaries must be regarded as coordinate authorities for the purpose of Article 217(1) and the President was free to accept the opinion of any of them. Assuming however they are coordinate authorities in the sense that each of them must be consulted, the scope of consultation is not the same so far as the Governor is concerned. He is certainly not in a position to give any opinion on the legal acumen of the persons proposed to be appointed. His opinion is relevant on matters on which the Chief Justice of the High Court or the Chief Justice of India are not expected to have any information. The question however remains, whose opinion should the President accept if the Chief Justice of the High Court and the Chief Justice of India differ? Normally, the Chief Justice of the High Court is likely to know more about a lawyer practising in that court whose name is proposed for appointment but where the question is whether or not the tenure of an Additional Judge should be extended, if all the relevant materials are before both, the Chief Justice of the High Court and the Chief Justice of India, it is difficult to see how the Chief Justice of the High Court is in a better position than the Chief Justice of India to give a correct opinion. However, as Krishna Iyer J., has said in Shamsher Singh’s case , the Chief Justice of India is the “highest dignitary of Indian Justice”. The president has to consult him for the appointment of the Chief Justice of a High Court. He is, as Mr. R.K. Garg appearing for Shri S.N. Kumar in Transferred Case No. 20 of 1981 (which is Writ petition No. 882 of 1981 filed in the Delhi High Court) described as the pater familias of the Indian judiciary. In my view the President should accept the opinion given by the Chief Justice of India in such a case unless the opinion suffers from any obvious Infirmity; he cannot act as an umpire and choose between the two opinions.
135. For the reasons indicated above, the decision in Shri S.N. Kumar’s case must be held invalid and the case should go back to the President for a fresh decision after a full and effective consultation as contemplated in Article 217(1) of the Constitution.
136. The other main issue arising on these writ petitions relates to the transfer of Judges from one High Court to another High Court. The question of transfer arises upon a letter addressed by the Law Minister on March 18, 1981 to the Governor of Punjab and the Chief Ministers of different States, except the North-eastern States, stating that the Law Commission, States Reorganisation Commission and various Bar Associations had expressed the view 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 be from outside the State in which that High Court is situated, the Law Minister in this letter requested those to whom the letter was addressed to (a) obtain from all the Additional Judges of the High Court in a State their consent to be appointed as permanent Judges in any other High Court in the country and (b) also to obtain similar consent from those persons who have been or in the future likely to be proposed for appointment as Judges. The letter also carried a request to obtain from the Additional Judges and the proposed appointees names of three High Courts in order of preference to which they would like to be appointed as Judges or permanent Judges as the case may be. It was however added that it should 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 the Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given. The letter says that the written consent and preferences of the Additional Judges and the persons recommended for initial appointment should be sent to the Law Minister within a fortnight of the receipt of the letter.
137. The question of transfer also arises in Transferred Case No. 2/81 which is Writ Petition No. 390 of 1981 filed in the Madras High Court and in Transferred Case No. 24 of 1981 which is Writ Petition No. 2224 of 1981 in the Patna High Court. These petitions relate to the transfer of the Chief Justice of the Patna High Court, Shri K.B.N. Singh, to the Madras High Court. Article 222(1) says that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. It was argued that the letter seeking to obtain general consent of the Additional Judges to their transfer to other High Courts was only a device to circumvent Article 222(1) reducing the requirement of consultation with the Chief Justice of India to a formality. Clearly, the Constitution does not contemplate taking of such general consent to transfer which might take place at some future dates in respect of only some of the Judges. The letter has thus no authority of law. This aspect has been dealt with in detail in the judgments of Tulzapurkar J., and Pathak J., which I have had the advantage of reading. I agree with them that the said letter dated March 18, 1981 is of no consequence legally and cannot bind or affect in any way those for whom it was intended.
138. This letter of March 18, 1981 suggests in defence of the proposed transfer of Judges that for furthering national integration and combating narrow parochial tendencies one-third of the Judges of a High Court should be from outside the State in which that High Court is situated. It has been held by a majority in Sankal Chand’s case that transfer of a Judge of a High Court to another High Court is permissible only in public interest and not by way of punishment. One reason stated in support of the policy of transfer in the letter of March 18, 1981 is that it would combat narrow parochial tendencies. However, the transfer of an individual Judge on the ground that he is guilty of parochial tendencies would be a transfer by way of punishment and as such not permissible. If the proposed transfer is with a view not to allow parochial tendencies to grow, then again the question will remain who among the Judges should be transferred and to which High Courts, Also, whether the transfer of Judges’ from one High Court to another would really further national integration may be open to debate. However, the validity of the policy does not arise for decision on these writ petitions. Apart from its validity, to what extent the policy is relevant in the context of Article 222(1) is a question, As held in Sankal Chand’s case mass transfers are not contemplated under Article 222(1). The President may transfer a Judge from one High Court to another only after consultation with the Chief Justice of India. The policy may provide the President with a ground to suggest the transfer of a Judge, but the Chief Justice of India must consider in each case whether the proposed transfer is in public interest because, even granting the validity of the policy, the question would remain who among the Judges should be transferred and to which High Courts.
139. In Transferred Case No. 24 of 1981 which was Writ Petition No. 2224 of 1981 in the Patna High Court in which Shri K.B.N. Singh, Chief Justice of the Patna High Court has been transposed as a petitioner, and Transferred Case No. 2 of 1981 which was Writ Petition No. 390 of 1981 in the Madras High Court, the validity of the Notification transferring Shri K.B.N. Singh as Chief Justice of the Madras High Court is challenged. The notification is challenged mainly on the ground that the order of transfer was bad as Shri K.B.N. Singh had not consented to it, that there was no full and effective consultation between the Central Government and the Chief Justice of India before the order was made, and that the transfer was not in public interest but was really by way of punishment. Tulzapurkar J. has dealt with this aspect of the case in detail in his judgment and I do not propose to go over the same ground as I agree with him for the reasons given by him that the impugned order of transfer is valid under Article 222(1) of the Constitution.
140. I would however like to add that an order of transfer even if made for administrative reasons and in public interest is likely to cause some injury to the Judge transferred, though that could not be valid ground for holding that the transfer is by way of punishment; it is the reason behind the order of transfer that should determine its nature. It would be only fair not to let the Judge who is being transferred face more difficulties than are absolutely necessary. If the Judge is wholly unfamiliar with the language of the State to which he is transferred, it is possible in some cases that it will affect his efficiency. I would ask the Government to consider if it is possible to transfer Shri K.B.N. Singh to some High Court, consistent with his position as a senior Chief Justice, where the language difficulty will not be so acute.
141. Counsel for the Law Minister questioned the locus stand of the petitioners in these cases who are members of the legal profession. The question however seems to be academic because Shri S.N. Kumar and Chief Justice K.B.N. Singh are parties respectively in Transferred Case No. 20 of 1981 and Transferred Case No. 24 of 1981; Shri S.N. Kumar, impleaded as respondent No. 5 in Transferred Case No. 20 of 1981 has supported the petitioners in challenging the validity of the decision not to extend his term of office as an Additional Judge of the Delhi High Court and Shri K.B.N. Singh transposed as petitioner in Transferred Case No. 24 of 1981 has challenged the notification transferring him to the Madras High Court. Apart from the fact that they are both parties, for the reasons given by Bhagwati, J. and Tulzapurkar J. in their respective judgments I agree with them that the petitioners who are practising advocates of different High Courts are competent to maintain the petitions.
142. In the course of the hearing of these petitions we had made two orders for the disclosure of certain documents. The reasons in support of these orders will appear from the judgment of Bhagwati J. with which I agree.
143. The petitions shall be disposed of in accordance with the conclusions reached on the various points arising for decision in these petitions.
Transferred Case No. 22 of 1981.
S.M. FAZAL ALI, J.: 144. The petitioners, Advocates practising in the High Court of Bombay, filed a Writ Petition No. 527/81 before the Bombay High Court challenging the constitutionality of Exhibit ‘A’, a Circular said to have been issued by the Union Law Minister on March 18, 1981 and addressed to the Governor of Punjab and Chief Ministers of States (except the North-Eastern States). The petitioners prayed for several reliefs to which we shall refer hereafter. The writ petition was transferred to this Court with the consent of the parties by an order dated June 9, 1981.
145. the petitioners alleged that the Union Law Minister who was respondent No. l in the original writ petition had issued a Circular Letter dated 18-3-1981 (hereafter referred to as the ‘Circular’) to the Governor of Punjab and the Chief Ministers of States requesting them to obtain the consent of Additional Judges of the High Courts concerned to their transfer as permanent Judges of High Courts other than those in which they were appointed as Additional Judges. We shall give details of this Circular when we deal with it. The Circular was received by the Chief Justice of the Bombay High Court on 29-3-81 and on 30-3-81 he addressed a letter to the Additional Judges (respondents 3 to 12) and asked them to do the needful. The said Circular seems to have created a serious upheaval in the rank and file of the lawyers of Bombay Bar resulting in a special general meeting of the Advocates Association of Western India on 3-4-81. It is alleged in the petition that the meeting was largely attended and a unanimous .resolution was passed, inter alia, condemning the Circular as being subversive of judicial independence and demanding that the Government be directed to withdraw the Circular. The furore on the Circular seems to have infiltrated into the Bombay Bar Association which also held several meetings and similar resolutions were passed. On 14-4-81 at meeting of the Managing Committee of the Bombay Incorporated Society passed similar resolutions and also resolved that the President of the Society should join as a petitioner, as a result of which the fourth petitioner was added as one of the petitioners. As a mark of serious protest against the Circular and the discourteous language in which the said document (circular) is alleged to have been expressed, the legal practitioners practising in the High Court, city civil courts, Small Cause Courts and the police courts resolved not to attend those courts on 15-4-81. The petitioners further alleged that they represented a large body of legal opinion of Bombay as also representing public interest in a free and independent judiciary which was the very bulwark of the democratic form of Government contemplated by the Constitution. In the writ petition, which has now been transferred to this Court, the petitioners sought the following reliefs:
(a) that it may be declared that the said letter, Exhibit ‘A’ to the petition, is ultra vires and void;
(b) that it may be declared that the consent if any consequent on or arising from the said letter given by an additional Judge or any person whose name has been or is to be submitted for his appointment as a Judge is null and void;
(c) that this Hon’ble Court will be pleased to issue an order or direction under Article 226 quashing the said letter Exhibit ‘A’, and the consent, if any, obtained from any person following on or as a result of the said letter.
(d) that in the alternative to prayer (c) above this Hon’ble Court will be pleased to issue a writ of mandamus (or any other writ, order or direction) directing respondents 1 and 2 to withdraw the said letter and to abstain from using or in any manner acting on the consent, if any, obtained from any person following on or arising from the said letter.
146. The petitioners also prayed for an ad interim injunction pending hearing of the petition. This seems to have been the reaction of the Bombay lawyers to the aforementioned Circular.
Transferred Case No. 20 of 1981.
147. Another writ petition was filed by Shri V.M. Tarkunde, a senior Advocate of the Supreme Court in the High Court o Delhi making Union of India, Justice O.N. Vohra, Justice S.N. Kumar and Justice” S.B. Wad as respondents and alleging that the independence of judiciary which was essential for the preservation of civil liberty was being eroded by the actions of the Government, viz., short-term appointment of Additional Judges for 3-4 months and short extensions granted after the term was over. Another grievance made regarding the Circular issued by the Union Law Minister compelling more than 100 Additional Judges all over the country to give their consent for being appointed as permanent Judges outside their State on the ‘ pain of being dropped was that this was an indirect method of bypassing the consultative process contemplated by Article 222.
148. Apart from these apprehensions the petitioner made serious allegations the purport of which was that a consistent campaign had been launched by some of the Ministers of Central Government and Chief Ministers of States against the higher judiciary. In this connection, statements of a Cabinet Minister and some Chief Ministers were mentioned. Referring to some concrete cases it was alleged that although permanent vacancies in the High Court of Delhi were available yet Justice Goswami and Justice Sultan Singh instead of being made permanent Judges were appointed as Additional Judges for a period of two years in July and August, 1960 respectively whereas Justice Vohra as an Addl. Judge only for three months. It was further alleged that two more Additional Judges, viz., Justice Kumar and Justice Wad were appointed for three months. According to the allegations made by the petitioner, the terms of the aforesaid three Judges, Justice Vohra, Kumar and Wad was to expire on 6-6-81. It appears that after the term of Justice Vohra and Justice Kumar expired on the 6th of June 1981, the Central Government did not reappoint them as a result of which they were sent back to the Bar. Justice Vohra did not file any petition and instead started his practice.
149. The writ petition filed by Mr. Tarkunde in the High Court of Delhi was also transferred to this Court and was numbered as Transferred Case No. 20 of 1981, While this case was pending in this Court the term of Justice Kumar expired and at his request he was impleaded and transposed as third respondent in the case so that he may be in a position to defend his cause. The petition of Mr. Tarkunde apart from challenging the Circular has also assailed the refusal of the Government to grant further extension to Justice Kumar and Justice Vohra. As Justice Vohra’s case was not pressed it is not necessary for us to go into the circumstances under which the term of Justice Vohra was not extended.
Transferred Case No. 19 of 1981.
150. This petition has been filed by Mr. S.P. Gupta against the President, Union of India, Chief Justice of the Allahabad Court and the Governor of U.P. In view of similar petitions having been transferred to this Court, this petition was also transferred to this Court from the Allahabad High Court by an order dated 1-5-1981. In this petition, the following reliefs were prayed:
(a) issue a writ, direction or order in the nature of a declaratory writ that Justice Murlidhar, Justice A.N. Verma, Justice N.N. Mitthal have already been appointed as permanent Judges of the High Court of Judicature at Allahabad by virtue of the warrants of appointment dated 12-12-1980, 12-3-1981 and 12-3-1981 respectively.
(b) in the alternative, issue a writ, direction or order in the nature of Mandamus directing the President to appoint Judges of the High Court according, to the submissions made in this petition;
(c) issue a writ, direction or order in the nature of Mandamus directing the President of India to appoint permanent judges of the High Court on the vacancies in the office of the permanent Judges, whenever such vacancies occur, in accordance with the constitutional scheme and provisions, as submitted in this petition and found by this court;
(d) issue a writ, order or direction in the nature of Mandamus directing the President of India to fill the vacancy of the Additional Judges of the High Court without delay.
Transferred Case No. 21 of 1981.
151. A petition exactly similar to the one filed by Mr. S.P. Gupta was also filed by Mr. J.L. Kalra, Advocate and others in the Delhi High Court which was also transferred to this Court by an order dated 1-5-1981 along with the case of Mr. S.P. Gupta. In this case, the following reliefs were sought:
(a) issue a writ of mandamus or any ether appropriate writ, order or direction commanding the respondent to assess the number of permanent and additional Judges required for this Hon’ble Court having regard to its current business and the accumulated arrears of work and create such number of permanent and additional posts of Judges as may be required, within such reasonable time as this Hon’ble Court may deem fit, in accordance with law;
(b) direct the respondent to appoint Hon’ble Mr. Justice N.N. Goswamy, Mr. Justice Sultan Singh and Hon’ble Mr. Justice O.N. Vohra as permanent Judges of this Hon’ble Court against the three vacant permanent posts forthwith;
(c). direct the respondent to extend the term of the additional Judges namely Hon’ble Mr. Justice S.N. Kumar and Hon’ble Mr. Justice S.B. Wad by a period of two years within two weeks from the date of the order;
(d) direct the respondent likewise to confirm/extend the terms of the additional Judges of the High Courts of Madhya Pradesh, Punjab and Haryana and Rajasthan, whose names are mentioned in paragraph No. 5 of this petition;
(e) direct that no such piecemeal extension, but a reasonable long term shall be given to the other additional Judges of this Hon’ble Court as well as of other High Courts in future.
152. Apart from these petitions which have been transferred to this Court other petitions were also filed against the order of the President transferring Justice Ismail, Chief Justice of the Madras High Court to be the Chief Justice of Kerala High Court and Justice K.B.N. Singh, Chief Justice of the Patna High Court to be the Chief Justice of Madras High Court.
Writ Petition No. 274 of 1981.
153. This writ petition was filed by Miss Lily Thomas, an Advocate of the Supreme Court challenging the order of transfer of Justice Ismail from Madras High Court to Kerala High Court. While the petition was pending, Justice Ismail choose to retire from service and hence the petition became infructuous so far as the main relief was concerned. Miss Thomas, however, pressed the petition only on one ground, viz., that even if the grievance against the transfer of Justice Ismail no longer survived yet she was entitled to contact the order of the President of India transferring Justice K.B.N. Singh from Patna High Court to Madras High Court. She was permitted to argue the case on this limited point, Transferred Case No. 2 of 1981.
154. Another petition was filed by Mr. Rajappa, Advocate in the Madras High Court being writ petition No. 3 of 1981 praying that the orders of the President of India transferring Chief Justice of the Madras High Court to the Kerala High Court and the Chief Justice of the Patna High Court to the Madras High Court be quashed on the ground that they were null and void and unconstitutional, This case was also transferred to this Court and numbered as T.C. No. 2 of 1981. This case, therefore, raises substantially the same questions as are involved in Writ petition No. 274 of 1981.
Transferred Case No. 24 of 1981.
155. So far as the case of Justice K.B.N. Singh, Chief Justice of the Patna High Court is concerned, Mr. D.N. Pandey, Secretary of the Bihar State Socialist Lawyers’ Association along with Thakur Ramapati Sinha filed a Writ Petition No. CMJC 2224/1981 in the Patna High Court against the Union of India, the Chief Justice of India, Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court and the Registrar, Patna High Court. Justice K.B.N. Singh, respondent No. 3, later after filing an affidavit in this Court prayed that he may be transposed to the category of petitioner. He was directed to file a detailed affidavit which was filed on 16-9-81 and he was transposed as petitioner No 3. This petition was also transferred to this Court as similar points were involved. In this petition, the petitioners prayed that the order of the President transferring Justice K.B.N. Singh be quashed and the respondents be directed not to give effect to the notification issued by the President transferring petitioner No. 3 to Madras.
Transferred Case No. 6 of 1981.
156. A similar Writ Petition No. 553/81 was filed by Mr. P. Subramanian before the Madras High Court praying that the order of the President transferring Justice Ismail from the Madras High Court to Kerala High Court be quashed. This petition also does not survive in view of the retirement of Justice Ismail.
Special Leave petition (Civil) No. 1509 of 1981.
157. This petition has been filed by Bipudaman Prasad Sinha praying for a writ of the quo warranto against Justice K.B.N. Singh, Chief Justice, Patna High Court for not proceeding to join his new posting at Madras and in continuing as Chief Justice of Patna High Court without any sanction of law in view of the order of the President transferring him to Madras. Special leave has not yet been granted in this petition but it has been tagged on with the cases relating to Justice K.B.N. Singh but was ultimately withdrawn before the conclusion of hearing of their cases.
158. Since the various writ petitions and intervener applications transferred to this Court raised almost common questions they were heard together but so far as the petitions relating to Justice K.B.N. Singh, Chief Justice of the Patna High Court are concerned they were relinked. After having heard Dr, Singhvi, counsel for the petitioners, on the point of law regarding the interpretation of Article 222 of the Constitution, we proceeded to deed with the questions of law and the constitutional points raised in the petitions of Mr. Chagla, Mr. Tarkunde, Mr. S.P. Gupta and others as also the constitutional points involved in Justice K.B.N. Singh’s case. So far as Justice K.B.N. Singh’s case is concerned we delinked it from other cases because his was the only case which had to be heard on facts turning upon mainly on the question — whether or not there was an effective consultation between the Chief Justice of India, the President of India, and the Chief Justice concerned, viz., Justice K.B.N. Singh.
159. As these petitions more or less involve common and overlapping points, we shall dispose them bf by one common judgment but deal’ with individual cases separately wherever necessary. T.C. Nos. 19 and 22//1981.
160. We would first deal with the question relating to the various facets, shades and aspects of Article 222 of the Constitution as contended before us by Messrs Seeryai, Sorabjee, Dr. Singhvi and others duting their respective terms.
161. So far as Mr. Seervai is concerned his contentions on the interpretation of Article 222, apart from its legislative history and setting, may be indicated as follows:
(1) The language of Article 222(1) is clear enough to enable the Court to hold that the transfer must be with the consent of the Judge concerned. Even if it is not so, then the main object of Article 222 is not very clear and plain and, therefore, it is necessary to go into the legislative history of the doctrine of transfer in order to ascertain the real intention of the Founding Fathers of the Constitution and, if so read, it would be amply clear that even if Article 222(1) does not expressly mention ‘consent’, the same must be implied in the Article by necessary intendment.
(2) As transfer of a High Court Judge from one High Court to another is an extraordinary phenomenon and has to be made in public interest, we must read consent of the Judge concerned before he can be transferred under Article 222, otherwise the very purpose and object of the Article would be defeated.
(3) As a transfer without consent of a Judge amounts to punishment, such a transfer involves a serious stain and stigma. Hence, in order to avoid such an anomalous petition it should be held that no Judge can toe transferred under Article 222 from one High Court to another without his consent.
In the same token it was argued by Dr. Singhvi that before transferring a Judge various aspects of public interest have to be examined qua the circumstances under which the Judge is transferred the compelling reasons why the transfer is being made and .the personal difficulties or hardships that the Judge may suffer as a result of his transfer. In other words, by and large, it was contended that non-consensual transfers should be considered to be prima facie punitive and, therefore, violative of Article 124(4) because if they amount to punishment then the punishment can only be for his misbehaviour or incapacity as contemplated by Article 124(4) and the procedure established by the Constitution or impeachment. We shall, however, develop the detailed aspect of the arguments of Dr. Singhvi when, we deal with the same at a later stage.
(4) It would appear from the historical background Of Article 222, that a transfer of a Judge from one High Court to another really amounts to a fresh appointment as a Judge to the transferee court because before taking oath in the transferee court, the Judge has to vacate his office of the original court and thereby he ceases to be a Judge in, the legal sense of the term of, the transferor court although for purposes of pension, allowances and salary, etc. he continues to be a Judge by virtue of a legal fiction.
As no person can be appointed as a Judge of the High Court in the first instance against his consent the same principle will apply mutatis mutandis to a Judge who is transferred from one High Court to another because his transfer to the transferee court would amount to his first appointment. In other words, the argument comes to this that once an order of transfer is passed by the President of India under Article 222, the Judge so transferred dies a civil death in the original High Court where he was appointed and takes a new birth in the new High Court where he is transferred.
(5) That if a transfer is made by the President without the consent of a Judge, it will seriously undermine and impair the independence of the judiciary which is doubtless the basic structure of our Constitution.
(6) That the majority decision of this Court in Union of India v. Sankal Chand Himatlal Sheth . (Hereinafter referred to as ‘Sheth’s case’) merits a second look and since the present is a larger Bench consisting of seven Judges, the previous decision, should be reconsidered and the view taken therein that consent is not necessary for the application of Article 222 must be overruled.
162. Thus; the sum and substance of the contentions raised by Mr. Seervai is that the words ‘with his consent’ should be read into Article 222(1) after the words ‘transfer a Judge’.
163. Messrs Sorabjee, Garg and S.P. Gupta who followed Mr. Seervai adopted his arguments in toto so far as the interpretation of Article 222 is concerned. They, however, laid greater emphasis on the question of primacy’ of the Chief Justice of India (hereinafter referred to as ‘CJI’) and contended that the opinion of the CJI was final and binding on the President or on the Council of Ministers who should tender advice to the President in accordance with the opinion expressed by the CJI if independence of judiciary was to be ensured.
164. Dr. Singhvi while adopting the arguments of Mr. Seervai submitted that a transfer without consent affects a Judge adversely and results in evil consequences and virtually amounts to a punishment which is worse than removal but he laid greater stress on the efficacy of the consultative process by the constitutional authorities concerned and a proper meeting and application of minds before a transfer is ordered. Other aspects and conditions of Article 222 relating to the nature and content of consultation will be examined when we deal with the case of D.N. Panday (T.C. No. 24/81) in which the Chief Justice of Patna High Court has been transposed as a petitioner.
165. These are the broad contentions advanced before us by the counsel for the parties, in these petitions.
166. The Attorney General, the Solicitor-General and Mr. Mridul appearing for the Law Minister have countered all the arguments advanced by the petitioners and have fully defended the impugned, orders, the Circular and the transfer of Justice K.B.N. Singh, Chief Justice of the Patna High Court to Madras High Court. We shall indicate the arguments in opposition when we deal with the arguments of the counsel for the petitioners.’
167. Thus, from the facts disclosed in the various petitions and in the light of the arguments advanced before us by the counsel for the parties, the following points arise for determination:
1. Locus standi
2. Article 217
(a) where is the power to appoint located, is it with the Executive?
(b) Is the opinion of CJI entitled to, primacy where the two constitutional functionaries, namely, CJ of a High Court and CJI differ, does the adverse opinion of either of them operate as a VETO against appointment; where both the CJ of a High Court and CJI agree upon accepting or rejecting a candidate for appointment, can the executive take a different view and appoint or decide not to appoint?
(c) who can initiate the proposal for appointment tinder this Article?
(d) whether consultation is necessary in case the Executive decides not, to appoint a person?
(e) Does this Article apply when an Additional Judge is to be appointed for a further term or as a permanent Judge?
(f) Scope of judicial review in case of Appointment & non-appointment.
3. Policy of Central Transfers
(a) Is the general policy of transfers of all CJs so what every State has a CJ from outside, good, valid and constitutional and in public interest?
(b) Can this policy he formulated and laid down by a declaration made by the President or Article executive order of the Council of Ministers without any legislation?
(c) Is the policy of recruiting one-third Judges from outside the State good, valid and constitutional and, if so, what should be the mechanism for implementing the said policy and the manner of its formulation?
(d) Has it been shown that the aforesaid policy has already been evolved, formulated and finalised by the Central Government?
4. Article 216.
(a) What is the scope of the power of the President under this Article?
(b) Is the exercise of the power by the President under this Article amenable to the judicial review and, if so, to what extent?
5. Article 224.
(a) What are the conditions and circumstances under which Additional Judges can be appointed?
(b) On the expiration of his term, is an Additional Judge entitled to be continued automatically, if the conditions for appointment of an Additional Judge continue to exist or is he again liable to be subjected to the process of Article 217.
(c) Does the Additional Judge have a right to be considered for appointment for a further term or as permanent Judge on expiration of his term or he can be just dropped without any consideration at all?
(i) Is there any convention that an Additional Judge must on the expiration of his term be continued for a further term or be appointed permanent Judge and if so, what is its legal effect on the interpretation of Articles 217 and 224?
(ii) If there is no convention, is there a practice to the above effect and, if so, what is its effect?
(d) Can an Additional Judge be appointed when a permanent post is vacant: if such an appointment is made, can the Additional Judge be deemed to be a permanent Judge?
(e) Can a short-term appointment of an Additional Judge be made under this Article?
6. Article 222.
(a) Who can initiate the proposal for transfer of High Court Judge?
(b) Is consent of a Judge to be transferred necessary before he can be transferred?
(c) What is the nature and effect of the consultation with CJI?
(d) Does the requirement of public interest limit the exercise of the power of transfer under this Article?
(e) What is the nature of public interest for which transfer of a High Court Judge can be effected’?
(f) Can a Judge be transferred on account of complaints or grievances against him or on recount of anything in his conduct or behaviour?
7. Circular letter dated March 18, 1981.
8. Claim of privilege against disclosure.
9. T.C. No. 20 of 1981– whether there was full and effective consultation; if not, what relief can be granted.
10. T.C. No. 24 of 1981 — whether there was full and effective consultation between the Govt. and CJI, whether the transfer of K.B.N. Singh was effected in public interest.
168. We first propose to deal with the various aspects of Article 222, the question of privilege, the nature and extent of consultative process under Article 222, the legal effect of the Circular and its constitutionality.
169. Coming to the interpretation of Article 222, the first question that falls for determination is as to whether or not consent can be read into Article 222 as argued by the counsel for the petitioners. To begin with, this matter was fully considered in Seth’s case where the majority judgment considered almost all the aspects of the matter and held that consent cannot be read into Article 222 and a transfer of a Judge from ‘one High Court to another High Court can be made even without his consent subject to effective consultation which has been explained by all the Judges, In that case Bhagwati J. and Untwalia J. dissented from the majority decision and took the view that no transfer of one High Court Judge to another High Court can be made without his consent. In other words the minority was of the view that the word ‘consent’ has to be read into Article 222 having regard to the extraordinary circumstances in which such a power is exercised and the constitutional position of a Judge, Normally, the decision in Seth’s case would have concluded the matter because in the instant case also the points raised are more or less similar but the arguments advanced before us in these cases have revealed many more aspects which may not have been before this court in Seth’s case and have opened new vistas which undoubtedly require a further consideration. Moreover, in that case the stand taken by the Union of India was that the matter may be decided as a sort of an academic question as the transfers made by the previous Government would be nullified by retransferring them. In view of this concession made by the Union of India in that case it was not necessary for this Court to go deep into the matter because ultimately the decision would turn out to be purely academic.
170. Thirdly, as the question of general policy of transfer has clearly arisen in these cases and lot of material has been produced before us to justify both the constitutionality and the legality of this policy, Article 222 as also the consultative process now assume a new complexion.
171. For these reasons, therefore, we are of the opinion that the judgment in Seth’s case (supra) may be reconsidered in the light of the fresh facts which have emerged since then though ultimately we may reach the same conclusions as held by the majority judgment.
172. We shall now examine the first limb of the contention of Mr. Seervai that the word ‘consent’ should be read into Article 222. It cannot be doubted that a transfer Under Article 222 must be made in public interest and it was so held in Seth’s case by all the Judges who were completely unanimous on this aspect of the matter. In this connection, Chandrachud J. (as he then was) observed thus:
The power to transfer a High Court Judge is conferred by the Constitution in 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 the other, has fallen from its grace.” (p. 444 of SCR): (at p. 2339 of AIR 1977 SC). And Bhagwati J. made the following observations (at p. 2352 of AIR):
One thing is, however, certain that the power to transfer a Judge from one High Court to another under Article 222, Clause (1) can be exercised only in public interest.
Krishna lyer, J., speaking for himself and one of us (Fazal Ali, J.) expressed his Views thus (at p. 2376 of AIR):
Indeed, the independent of the judiciary is itself a necessitous desideratum of public interest, and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as not to militate seriously against the free flow of public justice.
And Untwalia, J, in his judgment struck an identical note and observed as follows (at p. 2388 of AIR):
It was, however, accepted by all concerned that the transfer can be made only in public interest or on the ground of public policy which sometimes has been characterised by eminent jurists as on unruly horse.
173. This position is also conceded by the Attorney General, the Solicitor General and Mr. Mridul. The main reason why this Court had held that the transfer of a Judge from one High Court to another should be in public interest was that the President should not exercise power by way of victimisation or to impede the free flow of public justice or as Chandrachud, J., put it “for an extraneous or collateral purpose”. Where, however, the compelling circumstances and the exigencies of administration or situation are objectively considered and it becomes necessary for the exercise of this power, these factors would constitute public interest to justify the exercise of the power by the President under Article 222. In the instant case, a general and unanimous policy of transfer of judges and Chief Justices of High Courts to promote national integration and suppress fissiparous tendencies, would doubtless be in public interest. Although Article 222 does not contain the words ‘public interest’ in so many words but the very exercise of the power, which is not a normal power but an exceptional one, it follows as a logical consequence that public interest is a necessary concomitant of the exercise of this power.
174. The question that now arises is if it can be said on a parity of reasoning that ‘consent’ also should be read as a part and parcel of the exercise of the power under Article 222. It is difficult to accede to this contention because if a Judge cannot be transferred without his consent then the power loses its significance and becomes an immunity to a Judge from transfer by withholding his consent. Thus, a power which is to be exercised by the President can be defeated or stalled by a simple act of the Judge in refusing to give his consent to the transfer. This could never have been the intention of the Founding Fathers of the Constitution. Article 222 may be extracted thus:
222. Transfer of a Judge from one High Court to another.
(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
(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.
175. A perusal of Article 222 unmistakably shows that it is expressed in absolutely clear, explicit, intelligible, plain and unambiguous language which admits of no vagueness or ambiguity, Mr. Seervai, however, by an involved process of reasoning wants us to import the concept of ‘consent’ by reading the same into the Article by way of necessary amendment of the Parliament. It is riot the function of the court to supply words to suit a particular course of action so as to be acceptable to a particular act of persons as a doctrine of implied consent. It is just like first raising a ghost and then trying to kill it. Before we enter into a detailed discussion of the Rules of interpretation of Statutes we might indicate that there is intrinsic evidence in the various constitutional provisions which clearly show that the word ‘consent’ has been dropped by the legislature deliberately or it is a case of deliberate omission rather than casus omissus. In order to drive home our point we would give a brief survey of the scheme of the Constitution regarding the expressions ‘consent’, ‘concurrence’ or ‘consultation’ used in various Articles to determine the context, the purport and the intention of the Founding Fathers of the Constitution.
176. Take, for instance, Article 127 which expressly deals with previous consent of the President, and may be extracted thus:
127. Appointment of Ad hoc Judges:
(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duty qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
(2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.” This Article may be divided into four parts:
(1) that there should be a lack of quorum of the Judges of the Supreme Court.
(2) that the Chief justice of India may with the previous consent of the President and (3) after consultation with the Chief Justice of the High Court, (4) request in writing the attendance, as an ad hoc Judge, for such period as may be necessary of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court.
Clause (2) of the Article provides that It shall be the duty of the Judge to attend the sittings.
177. It would thus appear that when the Constituent Assembly intended that there should be consent, it has said so in very clear terms. The first part clearly shows that the power under Article 127(1) can be exercised only with the previous consent of the President and not otherwise. Similarly, in the second part, the word ‘consultation’ is used and in Clause (2) the word ‘duty’ is used which completely rules out ‘consent’. An analysis of this Article clearly shows that whenever the Constitution intended a particular expression to have a particular meaning it has made its intention clear and unambiguous by using the word ‘duty’, ‘consent’ or ‘consultation’.,
178. Article 128 requires consent of the President before an offer is made to a retired Judge to act as an ad hoc Judge of the Supreme Court. Proviso to Article 128 may be extracted thus:
Provided that nothing in this Article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
179. This proviso clearly enjoins that the ad hoc Judge cannot be requested to sit in the court unless he consents to do so. Indeed, if the intention of the Constituent Assembly was that a transfer could not be made without the consent of the Judge, then a similar expression as contained in the proviso or something like that would have been used in Article 222(1). The absence of any such expression shows that the Constituent Assembly deliberately omitted ‘consent’ by necessary intendment.
180. Article 224-A deals with the appointment of retired Judges at sittings of High Courts which may be extracted thus:
224-A. Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
181. The provisions of this Article make the exercise of powers conditional on the consent of the Judge concerned. In Chandra Mohan v. State of U.P. this Court has clearly indicated that where the Constitution intended particular expressions to be used it has expressed its intention clearly and observed thus (at p, 1690 of AIR):
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.
182. Article 258 runs thus:
258. (1) Notwithstanding anything in this Constitution the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State, has no power to make laws, confer powers, and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers and duties.
183. Here also, the President has to exercise his powers with the consent of the Government of a State, either conditionally or unconditionally. In other words, where the power conferred on the President is to be exercised with consent,1 the Founding Fathers of the Constitution have expressly said so in the concerned Articles. On a parity of reasoning, therefore, if the intention of the Founding Fathers was to make ‘consent’ an essential ingredient of Article 222, they would have used the expression ‘the President may, with the consent of the Judge concerned, transfer a Judge from one High Court to another’. The fact that Article 258. requires the President to act with the; consent of the Government of a State, which is also a constitutional authority; the same principle will apply to a High Court Judge who is also a constitutional authority. Therefore, this leads to the irresistible conclusion that the word ‘consent’ was never intended to be included in the powers to be exercised under Article 222.
184. Article 258-A runs thus: 258-A. Notwithstanding anything in this Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends.
185. Here also, the Governor of a State has’ to exercise a particular power only with the consent of the. Government of India and not otherwise. This also shows that the Founding Fathers were fully aware of the situations where consent is necessary find where it is not.
186. Article 254 deals with the legislative powers of the center and the States. Clause (2) of Article 254 provides thus:
254(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
187. It is obvious that here as a legislation is concerned, the expression used is ‘assent’ and not ‘consent’ though both the terms are synonymous. The use of the word ‘assent’ is generally made when we are dealing with statutory enactments.
188. Sub-clause (ii) of Clause (1) of Article 370 may be extracted thus:
(ii) such other matters in the said lists as, with the concurrence of the Government of the State, the President may by order specify.
189. The laws mentioned in Article 370 can be applied to the State of Jammu & Kashmir only with the concurrence of the Government of the State. Here the word ‘concurrence’, which is stronger than ‘consent’, has been used to indicate and maintain the special status given to that State. Certain aspects of this matter have been clearly pointed out by Krishna Iyer, J. in Sheth’s case thus:
It would thus appear that the Constitution itself specifies ‘consent’ where it is intended and omits it when unnecessary. If, therefore, the Constitution makers intended that under Article 222 a Judge cannot be transferred from one High Court to another without his consent then it should have been expressly so mentioned in the Constitution.
190. We have given these dear instances to drive home the point that wherever the Founding Fathers intended that a particular expression should be used in an Article as a condition precedent to the exercise of a particular power, the same has been mentioned and where no such intention was there the expressions have not been used. As against this, Mr. Seervai submitted that in Article 217 which provides for the appointment of High Court Judges, it has nowhere been indicated that the Judge proposed to be appointed should give his consent to the appointment. In Seth’s case , Krishna Iyer J. while dealing with an identical argument observed as follows (at p. 2382):
It would be seen that in this constitutional provision the words “appointed” and “transferred” have been used separately conveying different connotations; and if the Constitution makers had used these two terms in the said subject in different contexts it cannot be argued that these two terms are interchangeable. On the other hand, an analysis of Article 217(1)(c) shows that the constitutional provision makes a clear-cut distinction between appointment and transfer.
191. We stick to the view expressed by Krishna Iyer, J. in the majority judgment. The argument of Mr. Seervai appears to be fallacious because this analogy cannot be applied to a Judge who after being appointed is transferred under Article 222. It is obvious that there is no provision in the Constitution empowering the President to appoint for the first time a person as a Judge of High Court against his consent and even if he is appointed, the persons appointed can refuse to act as a Judge and if he does so the matter ends there and he cannot be compelled to act as a Judge Once, however, the person decides to accept the appointment of a Judge of a High Court he becomes a constitutional functionary and therefore would be subject to the provisions of the Constitution because before deciding to accept the appointment he must be presumed to be aware of the constitutional provisions contained in the various Articles regarding High Court Judges, viz., the conditions of service, the salary and other allowances, the date of retirement and also the provision “regarding transfer as provided for in Article 222 which does not contain the word ‘consent’. It would thus not be open to any Judge to complain that he had been transferred against his consent or to plead that had he known this he may not have accepted the office of a High Court Judge, As the word ‘consent’ is conspicuously absent from Article 222, such a plea cannot in the nature of things be permitted to be taken by the concerned Judge. If he does not want to be transferred, it is always open to him to resign for which also there is a clear provision under proviso (a) to Clause (1) of Article 217. Therefore, the argument of Mr. Seervai must be overruled.
192. These are the intrinsic circumstances to show that the Founding Fathers did not intend to use the word ‘consent’ in Article 222 deliberately. We have already held that Article 222 is expressed in the clearest possible terms, But, assuming for the sake of argument as urged by Mr. Seervai, that there is some element of ambiguity either in the setting and pattern of Article 222 or in the real object which it seeks to subserve, which according to Mr. Seervai finds ample support from the fact that two Judges in Seth’s case have taken the view which Is being propounded by the learned Counsel, we would attempt to construe Article 222 in the light of the well settled rules of interpretation of statutes.
193. Before, however, we discuss the various books, reference and authorities we must take into consideration a very weighty circumstance which is peculiar to our Constitution as also to the American Constitution. It must be remembered that in England if any error is committed by a court of Appeal, it may be corrected by the House of Lords or eventually by Parliament by a simple majority. Similarly, in Australia also if the High Court gives a wrong interpretation of a particular constitutional provision it can be set right by the privy Council by an appeal against the said order of a High Court and the Parliament may amend the statute to bring it in conformity with the intention and that too by a simple majority. The position so far as our country is concerned is similar to that of America and if any error of interpretation of a constitutional provision is committed by the Supreme Court or any interpretation which is considered to be wrong by the Government can be rectified only by a constitutional amendment which is a very complicated, complex, delicate and difficult procedure requiring not merely a simple majority but two-third majority of the Members present and voting. Apart from the aforesaid majority, in most cases the amendment has to be ratified by a majority of the States. In these circumstances, therefore, this Court which lays down the law of the land under Article 141 must be extremely careful and circumspect in interpreting statutes, more so constitutional provisions, so to obviate the necessity of a constitutional amendment every time which, as we have already mentioned, is an extremely onerous task. S.R. Das, C.J. in the case of Bengal Immunity Co. Ltd. v. State of Bihar expressly referred to this aspect of the matter and observed as follows (at p. 672):
An erroneous Interpretation of the Constitution may quite conceivably to perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public well being.
194. Having carefully interpreted a particular provision of the Constitution, the Court should as far as possible stick to the doctrine of stare decisis. It must be remembered that as Lord Wright pointed out in James v. Commonwealth (1936) AC 578 that a Constitution is a federal component and the constituents must hold a balance between all its parts.
195. Thus, so far as the general principles regarding interpretation of statutes are concerned they are now well settled beyond any controversy for the last two centuries in almost all the countries of the world having a democratic Constitution or pattern of Government, As far as this Court is concerned, on some points decisions during the first decade of its existence were somewhat inconsistent but generally the view which found favour with most of the Judges during the first decade was that the methodology of interpretation of statutes should be the same for constitutional provisions as it is for statutory provisions. It has further been held that external aids like Parliamentary debates, report of the Drafting or select committees, the Objects and Reasons of the Act are wholly inadmissible for the purpose of interpreting the provisions of a statute which would depend entirely on the language of the provisions concerned. Here also, some of the cases have held that, where the language of the provisions is shrouded in obscurity or is not fully intelligible so as to ascertain or find out the objects of the Act, external aids may be permissible. So far as speeches made by a Minister is concerned, it has been consistently held to be wholly inadmissible because it represents the individual view of a single person with which the majority of the Members if Parliament or may not have agreed.
196. During the second and third decade this Court made a prominent shift from the original stand and a long course of recent decisions have permitted parliamentary debates of Reports of Drafting or Select Committees to be taken into consideration for the purpose of ascertaining the object or the real meaning of the language employed in a statutory or constitutional provision.
197. But there is one principle on which there is complete unanimity of all the courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded and unobsecured, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom.
198. It is equally well settled that it is not the duty of the court to import words which have been omitted deliberately or intentionally in order to fill up a gap or supply omissions to fit in with the ideology of concept of the Judge concerned. The words and the language used must be given their natural meaning and interpreted in their ordinary and popular sense.
199. There may be a .third type of cases which may be .on the border line –where the language may admit of two interpretations in which case the court may consider the desirability of resorting to external aids in order to catch and delve into the spirit and object of the statute.
200. These principles have been enunciated over the years by several authorities of various courts to which I shall refer hereafter. Before, however, going to the authorities, it may be necessary to refer to extracts from the various books of legal scholars of the interpretation of Statutes.
201. Crawford in his book captioned “Statutory Construction’ (1940 Edition) in para 158 ‘Purpose of Interpretation and Construction (pp. 244-245) has observed thus:
The basic principle has been announced time after time that if the statute is plain certain and free from ambiguity a bare reading suffices and interpretation is unnecessary.
202. At page 344, it has also been pointed out by the author that alteration, interpolation or elimination of words are not permissible. In this connection, the author makes the following observations while dealing with an American case:
As we have already stated, the intention of the legislature must be primarily ascertained from the language used. This obviously means, as a general rule, that the courts have no power to add to, or to change, alter, or eliminate the words which the legislature has incorporated in a statute, not even in order to provide for certain contingencies which the legislature failed to meet, or to avoid hardship flowing from the language used, or to advance the remedy of the statute.
203. At pages 368-389, the author further observed thus:
Where the meaning of a statute is in doubt, the court may resort to contemporaneous construction–that is, the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter — for as (sic) in removing any doubt. Similarly, resort may also be had to the usage or course of conduct based upon a certain construction of the statute soon after its enactment and acquiesced in by the courts and the legislature for a long period of time. As is obvious, the meaning given to the language of a statute by its contemporaries is more likely to reveal its true meaning than a construction given by men of another day or generation. Even words change in meaning with the march of time. And the meaning given by contemporaries can be revealed with no more certainty than by resort to the common usage and practice under the statute itself over a considerable period of time.
204. The author has rightly observed that sometimes it so happens that words change in meaning with the march of times. If this is so, it is manifest that the court while interpreting a statute dealing with socialism cannot ignore the temper of the times and the modern trends of legal thought.
205. Similarly, while dealing with the circumstances and the history of the Statute, the author says thus:
According to the weight of authority and surely the better view, the court may consider the general history of a statute, including its derivation that is the various steps leading up to and at tending its enactment, as shown by the legislative journals, in its effort to ascertain the intention of the legislature where it is in doubt. Conversely, the legislative history cannot be considered where the statute’s meaning is plain. (p. 383)
206. Here also, we find that history, etc., is permissible only where the language of a statute is ambiguous and not where the meaning of the statute is plain and clear.
207. V.P. Sarathi in ‘Interpretation of Statutes’ (1975 Edn.) observed thus:
In order to arrive at the intention of the legislature, the state of law and judicial decisions antecedent to and at the time the statute was passed are material matters to be considered….
Courts sometimes make a distinction between legislative debates and reports of committees and treat the latter as a more reliable or satisfactory source of assistance.
It is submitted that the subtle distinction that parliamentary history may be referred for ascertaining the intention, foul not for construction, is pedantic. In fact all such material must be freely referred: and it is only by resort to such material that the object of the legislation and how the legislature intended to achieve that object by the particular statute can be correctly ascertained by the Court. (p. 339)
208. At page 367, the author observes thus:
(a) Reference to English and American decisions may be made, because they have the same system of jurisprudence as ours, but do not prevail when the language of the Indian Statute or enactment is clear.
(b) They are of assistance in elucidating general principles and construing Acts in part materia.
(c) But Indian statutes should be interpreted with reference to the facts of Indian life.
209. The observations in Clause (c) are rather important because that seems to us to be the correct approach. Seervai in “Constitutional Law of India” (2nd Edn.) Vol. II, pp. 1543-44 observes thus:
Secondly, where words are clear and unambiguous effect must be given to them regardless of consequences….After all the object of interpretation or documents and statutes is to ascertain “the intention of .them that made it”. The literal interpretation has a prima facie preference, but to get at the real meaning it is necessary to apply the rule in Heydon’s case.
…
However, where the words of a statutory or constitutional provision are ambiguous, resort may be had to well recognised extrinsic aids to construction and regard may be had to the consequences of adopting one construction rather than another. The meaning of “ambiguity” has been considered at length in paras 2.31 and 2.32 of the text.
210. Craies on “Statute Law” (6th Edn.) while quoting Jervis C.J., at p. 86 observes thus:
It is clear that “if”, as Jervis C.J. said in Abley v. Dale (1850) 20 LJCP 33, 35 the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but, we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.
211. Similarly, the author has categorically observed that in the interpretative process casus omissus is not to be added or supplied. In this connection, the following observations have been made at p. 70:
A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made….Although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there” and quoting Lord Parker, the author says thus:
Where the literal reading of a statute…produces an intelligible result…there is no ground for reading in words or changing words according to what may be the supposed intention of Parliament.
212. At page 66, the author observes thus:
The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves….If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver.
Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.
213. Lord Bacon says that the function of a Judge is jus decere and not jus dare, i.e., to interpret the law and not to make it. Similarly, Marshal, C.J, observed that we must remember that “it is the Constitution that we are expounding”. These observations aptly apply to the instant case where we are construing a constitutional provision, viz., Article 222, particularly when a provision like this is not to be found in any Constitution of any other country of the world.
214. According to Maxwell, the golden rule of interpretation is to adhere to the ordinary meaning of the words used unless it is in direct conflict with the intention of the Act. In this connection, the author in his book ‘Interpretation of Statutes’ (l’2th Edition) observes thus:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.
215. I have laid particular stress on the casus omissus aspect of the interpretative process because the main thrust of the argument of Mr. Seervai on interpretation of Article 222 was that the word ‘consent’ should be read into Article 222 which is not there at all, and if the contention of the counsel is accepted, it will amount to the court supplying an omission which has been made deliberately by the Founding Fathers of the Constitution and would be in direct contravention of the scheme of the Constitution as discussed above.
216. The leading case on the subject is Heydon’s case (1584) 76 ER 637 where the broad principle of interpretation of Statutes was spelt out and explained. In this connection the Court observed as follows:
And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th, The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
217. This case has been followed both by this Court as also by the courts in England for a pretty length of time. This may be the starting point of the manner and the method which the Court should adopt in interpretation of statutes.
218. The authorities-on the question of interpretation of the constitutional provisions may roughly be divided into four categories which may not exactly be absolutely separate or independent so as to be confined in a watertight compartment but in some cases may overalp, yet they generally lay down the law on the subject categorised by us:
Categories (A) Where the language of a statute is plain, explicit and unambiguous, no external aid is permissible.
(B) Where the language is vague and ambiguous or does not clearly spell out the object and the spirit of the Act, external aids in the nature of parliamentary debates, reports of Drafting or Select Committees may be permissible to determine and locate the real intention of the legislature.
(C) Where certain words are omitted from the statute, the court cannot supply the omission or add words to the statute on a supposed view regarding the intention of the legislature.
(D) Any speech made by a Minister or a Member in the Parliament is not admissible or permissible to construe a statutory or a constitutional provision.
219. We shall now deal with the authorities which fall more or less within the four categories indicated above.
Category (A)
220. The earliest case on the subject 13 A.K. Gopalan v. State of Madras where Kania C.J. pointed out that external aid was not permissible unless a statute was ambiguous and observed thus (at p. 36 of AIR):
“Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the working of this clause. The \ report may be read not to control the meaning of the article, but may be seen in case of ambiguity….
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved.
221. Fazal Ali, J. (as he then was) speaking in the same strain made the following observations (at p. 56):
In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in Article 21, especially when they are plain and unambiguous they are relevant to show that the Assembly intended to avoid the use of the expression without due process of law.
(Emphasis ours) And Mukherjea, J. observed thus (at p. 03):
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving affect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute.
As an aid to discover the meaning of the words in a Constitution, these debates are of doubtful value. “Resort can be had to them”, says Willoughby, “With great caution and only when latent ambiguities are to be solved….
222. The same view was expressed by Gajendragadkar, J. (as he then was) in Kanai Lal Sur v. Paramnidhi Sadhukhan where the learned Judge observed as follows (at p. 910):
If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise.
223. In M. Pentiah v. Muddala Veeramallappa Sarkar, J. observed thus (at p. 1115):
Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a Statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense.
224. In M.V. Joshi v. M.U. Shimpi Subba Rao, J. expressed the opinion of the Court thus (at p. 1498):
But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language employed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the Legislature.
225. In Hansraj Gordhandas v. H.H-Dave, Asstt. Collector of Central Excise & Customs, Surat Ramaswami, J. speaking for the court observed thus (at page 759):
It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.
It is an application of this principle that a statutory notification, may not be extended so as to meet a casus omissus.
226. Although these observations were made in respect of a taxing statute, the principle of interpretation of provisions of a statute or of the Constitution is the same; the only difference being that in a taxing statute where two interpretations are possible, benefit of the doubt is normally given to the tax-payer.
227. iD Commissioner of Income-tax, Assam & Nagaland v. G. Hyatt , Hegde, J. speaking for the Court made the following observations (at p. 726):
In our opinion the meaning of Section 17(3)(ii) is plain and unambiguous. Hence there is no need to call into aid any of the rules of construction as was sought to be done by the High Court.
228. In Senior Superintendent, R.M.S., Cochin v. K.V. Gopinath, Sorter , Mitter, J. reiterated this well settled principle thus (at p. 1488):
As has often said that if “the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense”, “and not to limit plain words in an Act of Parliament by con-siderations of policy, if it be policy, as to which minds may differ and as to which decisions may vary.
229. In Umed v. Raj Singh , Bhagwati, J. (one of us made the following observations) (at p. 61):
But that does hot mean that a construction should be adopted which ignores the plain natural meaning of the words or disregards the context and the collocation, in which they occur. It is a familiar rule of interpretation that the words used by the Legislature must be construed according to their plain natural meaning.
230. In Anandji Haridas & Co. Pvt. Ltd v. Engineering Mazdoor Sangh this Court observed as follows (at p. 949):
a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
231. In Mangalore Electric Supply Co. Ltd. v. Commr. of Income Tax, West Bengal this Court observed thus (at p. 1274).
The justification for this submission is stated to be that the word ‘transfer’, occurs in the collocation of three other words ‘sala’, ‘exchance’ and “relinquishment”which are essentially “optional or voluntary acts, leading to the conclusion that the word ‘transfer’ must take its colour from the three other words in association with which it is used. ‘Transfer’ therefore, according to the learned Counsel, means a voluntary transfer and cannot include all compulsory acquisition of property.
We find it impossible to accept the submission. In the first place if it was intended that voluntary transfers alone should fall within the meaning of the section, it was unnecessary for the legislature to use the expression ‘transfer’, an expression acknowledged in law as having a wide connotation and amplitude….Without more, therefore, there is no reason for limiting the operation of the word ‘transfer’ to voluntary acts of transfer so as to exclude compulsory acquisitions of property.
232. This decision seems to us to be apposite to the facts of the present case, viz., interpretation of the word “transfer” as the argument of Mr. Seervai is that the word ‘transfer’ used in Article 222 must be confined only to a transfer with the consent of the Judge concerned, thereby limiting the scope and ambit of Article 222, A similar argument was advanced in the case supra and rejected and the Court held that there was no reason to limit the word ‘transfer’ only to a voluntary transfer so as to include compulsory acquisition of property. On a parity of reasoning, therefore, we are of the opinion that to read ‘consent’ into Article 222 would be to limit and whittle down the scope, ambit and purpose of Article 222.
233. It is not necessary for us to multiply authorities on the subject covered by category ‘A’ because the text books and the authorities of this Court as also of some foreign courts referred to above, clearly lay down that where the language of a statute is plain and unambiguous it is not permissible to rely on external aids. Category (B)
234. This category consists of those cases which have laid down that where the language is vague or ambiguous to what extent external aid can be used to locate the actual intention of the Legislature. In Powell v. The Kempton Park Racecourse Co. Ltd. (1899) AC 143. Lord Halsbury indicated the extent to which external aid could be used by courts in construing a statutory provision and observed thus:
It has, indeed been argued that the history of the legislation and of the facts which gave rise to the enactment may in view of the preamble affect the construction of the Act itself, but though I do not deny that such topics may usefully be employed to interpret the meaning of a statute, they do not, in my view, afford conclusive argument here.
235. In A.K. Gopalan’s case (supra), Sastri, J. (as he then was) observed as follows:
It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression “except according to procedure established by law” taken from the Japanese Constitution, 1946, for the words “without due process of law” which occurred in the original draft, “as the former is more specific”.
236. The learned Judge has clearly Indicated that the reason why our founding Fathers substituted the words ‘except according to the procedure established by law’ in Article 21 instead of the words “without due process of law” as used in the American Constitution because they implemented the Report of the Drafting Committee which had taken the words ‘procedure established by law’ from the Japanese Constitution of 1946. His Lordship then indicated the nature, extent and the circumstances in which external aid could be used to construe a constitutional provision, Sastri J., also commented on the extent of the relevancy of a speech made in the course of a debate on a Bill and in this connection observed thus:
A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the/minds of all those legislators were in accord.
237. Thus, the view of Sastri, J. was that a court could locate the objective and intent of the legislature primarily in the words used by the Constitution supported by such historical material as may be available.
238. In Commr. of Income Tax, Gujarat v. Vadilal Lallubhai . Hegde, J. observed as follows (at p. 1019):
In order to find out the legislative intent, we have to find out what was the mischief that the legislature wanted to remedy. The Act was extensively amended in the year 1939. Section 44-F was not in the draft bill. That section was recommended by the Select Committee consisting of very eminent lawyers. It will net be inappropriate to find out the reasons which persuaded the select Committee to recommend the inclusion of Section 44F, if the section is considered as ambiguous.
239. In this case, the Court relied on the recommendation of the Select Committee in order to find out the reasons for inclusion of a particular section.
240. In State of Mysore v. R.V. Bidap this Court seems to have made a positive shift from the view taken in earlier cases of this Court and held that in order to ascertain the meaning of a statute or its object the court should not confine itself within a particular sphere but should take into consideration whatever is logically relevant or admissible. This is a decision of a Constitution Bench and shows the modern trend of interpretation of statutes. Krishna Iyer, J. speaking for the Court tersely observed as follows (at p. 2558):
The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief-sought to be remedied the social context, the words of the authors and other allied matters.
241. An identical view was taken in a later case of this Court in Faqu Shaw v. State of West Bengal where Bhagwati, J. relied on the decision extracted above and observed thus (at p. 628):
Since the purpose of interpretation is to ascertain the real meaning of a constitutional provision, it is evident that nothing that is logically relevant to this process should be excluded from consideration. It was at one time thought that speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution were wholly inadmissible an extraneous aids to the interpretation of a constitutional provision, but of late there has been a shift in this position and following the recent trends in juristic thought in some of the Western countries and the United States, the rule of exclusion rigidly followed in Anglo-American jurisprudence has been considerably diluted.
242. It is true that these observations are to be found in the dissenting judgment of Bhagwati, J. (one of us) but on this issue there was no dissent. We are inclined to endorse the observations made by Krishna Iyer, J. and Bhagwati, J. as referred to in the cases mentioned above.
243. In Anandji Haridas & Co. v. Engineering Mazdoor Sangh , Sarkaria, J. speaking for the Court observed as follows (at p. 949):
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the word in question.
244. In Sole Trustee, Loka Shikshana Trust v. Commr. of Income-tax, Mysore , this Court made the following observations (at p. 22):
But, in the case before us, the real meaning and purpose of the words used cannot be understood at all satisfactorily without referring to the past history of legislation on the subject and the speech of the mover of the amendment who was, undoubtedly, in the best position to explain what defect in the law the amendment had sought to remove.
245. In State of Tamil Nadu v. Pyare Lal Malhotra Beg, J. (as he then was) observed thus (at D. 803):
The reason given, in the Statement of Objects and Reasons of the 1972 Act, for an elucidation of the “definition” of iron and steel, was that the “definition” had led to varying interpretations by assessing authorities and the courts so that a comprehensive list of specified declared iron and steel goods would remove ambiguity. The Select Committee, which recommended the amendment called each specified category “a sub-item” falling under “iron and steel.
246. In this case, the court relied on the Report of the Select Committee as also on the Statement of Objects and Reasons of the Act in order to elucidate the definition of certain words used in the statute.
247. To the same effect is a later decision of this Court in Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agarwal , where the court observed as follows (at p. 1203):
Amending Act 22 of 1972 was, therefore, enacted for the express purpose of saving decree which had already been passed. The Statement of Objects and Reasons of the Amending Act stated.
248. Same view was taken in a batch of appeals by this Court in Polestar Electronic (Pvt.) Ltd. v. Addl. Commr. Sales-Tax where Bhagwati, J. (one of us) took into consideration the subsequent history of the Act as also the Statement of Objects and Reasons in order to construe certain provisions of the statute concerned and observed thus (at p. 910):
The subsequent history of the Act also supports the construction which we are inclined to place on Section 5(2)(a)(ii) and second proviso. Section 5 (2) (a) (ii) was amended with effect from May 28, 1972 by Finance Act, 1972 and the words ‘in the Union Territory of Delhi’ were added after the word ‘manufacturer’ so as to provide that manufacture should be inside the territory….It is clear from the Statement of Objects and Reasons that this amendment was not introduced by Parliament ex abundanti cautela, but in order to restrict the applicability of the exemption clause in Section 5(2)(a)(ii). The Statement of Objects and Reasons admitted in clear and explicit terms that….
249. In Mangalore Electric Supply Co. (supra) Chandrachud, J. (as he then was) relied on the legislative history of the provision of the statute concerned in order to construe the intention of the legislature and pointed out thus:
The legislative history of Section 12B (I) furnishes an important clue to the question raised by the appellant’s counsel.
250. In Dadaji v. Sukhdeobabu this Court made the following observations (at p. 155):
Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one entry or the other.” Category (C)
251. This category consists of those cases which take the view that words cannot be omitted from the statute or supplied to it if they are not there. In other words, in interpretation of statute, the doctrine of casus omissus is a fundamental test. In A.K. Gopalan’s case (supra) S.R. Das J. very poignantly pointed out thus:
The Constitution has by Article 21 required a procedure and has prescribed certain minimum requirements of procedure in Article 22. To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.
(Emphasis supplied)
252. A similar view was taken by Das, J. in Nalinakhya Bysack v. Shyam Sunder Haldar where he very pithily observed thus (at p. 152):
It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel L.R. (1891) AC 531 at p. 549 that it is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner 6 Moo PC 1 aid the Legislature’s defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun Mussorie Electric Tramway Co. Ltd. others than the courts to remedy the defect.
253. Thus, this Court has clearly held that in construing a statutory or Constitutional provision, the court should not presume that the legislature has either committed a mistake or has omitted something which was very necessary. Das J. very rightly remarked that it was not for the Court but for others to remedy the defect, if any, found in a statutory provision. If we accept the argument of Mr. Seervai and read the word ‘consent’ in Article 222 by supplying the omission, we will be violating the cardinal principle of interpretation as adumbrated by Das J. in the case supra.
254. In Sri Ram Ram Narain Medhi v. State of Bombay the law on the subject was very succinctly and clearly laid down by this Court and N.H. Bhagwati J. observed thus (at p. 470):
Acceptance of the interpretation which is sought to be put upon these words by the petitioners would involve the addition of words “in the process of the acquisition by the State of any estate or of any rights therein” or “in the process of such acquisition” which according to the well known/ canons of construction cannot be done. If the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the legislature.
255. We find ourselves in complete agreement with these observations which aptly apply to the present case so far as Article 222 is concerned and are sufficient to demolish the argument of Mr. Seervai that the word ‘consent’ should be added to or read into Article 222 even if it is not there.
256. In Commr. of Income Tax, Central Calcutta v. National Taj Traders Tulzapurkar, J. speaking for the Court highlighted the importance of the doctrine of casus omissus in a very poignant exposition of the law on the subject and opined thus (at p. 489):
In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily referred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
257. Thus, Tulzapurkar J, laid down three conditions under which omissions could be supplied to a statute–
(1) that there was a clear necessity for the same, (2) that the reason for supplying the omission was to be found in the provisions of the statute itself expressed or by necessary intendment and (3) that the omission was to be supplied only to make the provision consistent with the object of the statute.
258. It is manifest that none of these conditions apply to Article 222 and therefore to supply the omission by reading the word ‘consent’ would really be going against the principles laid down by this Court in the aforesaid case.
259. In Gurbaksh Singh Sibbi’a v. State of Punjab Chandrachud C.J. while dealing with this particular aspect of canon of construction of a statute, very pithily observed thus (at p. 1639):
By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
260. It follows from the observations made by this Court that if the word consent is read into Article 222 then it with amount to imposing unnecessary restraints and conditions in the Article which are not there at all and which cannot be done under the well known rules of interpretation of statutes. Category ‘D’
261. In this category we shall include those cases which hold that a speech made by a Minister or by a Member of Parliament is neither admissible’ nor permissible to construe a statutory or a constitutional provision. It may, however, be noted that a speech made in a debate is different from the Report of a Select Committee or views expressed in close proximity to the making of a statute or introduction or insertion of a statutory provision where the statement would undoubtedly be relevant because it forms part of the formative process of “the statutory provision itself. We have highlighted this particular aspect of the matter because in the instant case. we shall show that there ‘are statements made by some of the Founding Fathers when the Constitution was being framed and the reasons given by the speakers formed the basis and foundation, of the constitutional provisions inserted in the Constitution,
262. In A.K. Gopalan’s case (supra) Sastri J. while dwelling on the admissibility of the speech made by a Minister on the floor of the House observed thus:
A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill, Nor is it reasonable to assume, that the minds of all those legislators were in accord.
263. Similar view was 4aken in United States v. Trans Missouri Freight Association (1896) 166 US 290 where the following observations were made:
Those who did not speak may not have agreed with those who did, and those who spoke might differ front each other.
264. To the same effect is a decision of this Court in Aswini Kumar Ghosh v. Arabinda Bose where Sastri C.J. speaking for himself, Bose and Ghulam Hasan JJ. observed as follows (at p. 378):
As regards the speeches made by the members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the interpretation of statutory provisions. Mukherjea J. also spoke in a similar strain and observed as follows (at pp. 384, 385):
…the language of a “Minister of the Crown” in proposing a ‘measure in Parliament which, eventually becomes law is inadmissible.
A reference to the legislative debates or the speeches that were actually delivered in the floor of the House is, in my opinion inadmissible to ascertain the meaning of the words used in the enactment”. and Das J. observed thus (at p. 395):
that the debates and speeches in the Legislature which reflect the individual opinion, of the speaker cannot be referred to for the purpose of construing the Act as it finally, emerged from the Legislature and so the debates must be left out of consideration.
265. It appears that while all the Judges were unanimously of the opinion that speech by a Minister or a speaker in the course of a debate was not admissible to construe the intention of the legislature, the majority judgment held that external aid in the nature of the legislative debates which resulted in the coming into existence of the constitutional provisions and, were in close proximity to the same, could be pressed into service. On this point we would like to follow the majority decision on the subject, subject of course to the condition that the language of a statute does not clearly spell out the dominant object which was sought to be achieved by the legislature.
266. In State of West Bengal v. Union of India Sinha, C.J. speaking for himself, Jafer Imam, Shah; Ayyangar and Mudholkar JJ. observed as follows (at p. 1247):
A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister of the intention and objects of the ‘Act cannot be used to cut down the generality of the words used in the statute.
(Emphasis ours)
267. In another Constitution Bench decision in Shyamlal Mohanlal v. State of Gujarat’ Shah J. speaking for the Court endorsed the stand taken in the case referred to above and observed as follows (at p. 1255):
In construing the words used by the Legislature, speeches on the floor of the Legislature are inadmissible. I do not refer to the speech for the purpose of interpreting the words used by the Legislature, but to ascertain the historical setting in which the statute, which is parent to Section 94(1) came to be enacted.
268. The learned Judge clearly held that while a speech on the floor of a legislature was inadmissible in ascertaining the real meaning of the word used by the legislature, the historical setting in which the statute was passed could! doubtless be admissible. This decision, therefore, make a clear departure, on the point of admissibility of historical setting, from the minority dissenting judgment of Das J. as indicated above.
269. In Anandji Haridas’s case (supra) this Court observed thus (at p. 949):
We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.
270. In Lok Shikshana Trust’s case (supra), this Court made the following observations:
It is true that it is dangerous and may be misleading to gather the meaning of the words used in an enactment merely from what was said by any speaker in the course of a debate in Parliament on the subject. Such a speech cannot be used to defeat or detract from a meaning which clearly emerges from a consideration of the enacting words actually used.
271. Thus, on a full and complete consideration of the decisions classified under the various categories, the propositions that emerge from the decided cases of this Court and other foreign courts are as follows:
(1) Where the language of a statute is clear and unambiguous, there is no room for the application either of the doctrine of casus omissus or of pressing into service external aid, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to ,suit what that courts think is the supposed Intention of the legislature.
(2) Where however, the words or expressions used in the constitutional or statutory provisions are shrouded ill mystery, clouded with ambiguity and are unclear and unintelligible so that the dominant object and spirit of the legislature cannot be spelt out from the language, external aids in the nature of parliamentary debates, immediately preceding the passing of the statute, the report of the Select Committees or its Chairman, the Statement of Objects and Reasons of the statute, if any, or any statement made by the sponsor of the statute which is in close proximity to the actual introduction or insertion of the statutory provision so as to become, as it were, a result of the statement made, can be pressed into service in order to ascertain the teal purport, intent and will of the legislature to make the constitutional provision workable. We might make it clear that such aids may neither be decisive nor conclusive but they would certainly assist the courts in interpreting the statute in order to determine the avowed object of the Act or the Constitution as the case may be.
(3) Except in the aforesaid cases, a mere speech of any member made on the floor of the House during the course of a parliamentary or legislative debate would not be admissible at all because the views expressed by the speaker may be his individual views which may or may not be accepted by the majority of the members present in the House.
I (4) Legislative history of a constitutional provision though not directly germane for the purpose of construing a statute may, however, be used in exceptional cases to denote the beginning of the legislative process which results in the logical end and the finale of the statutory provision but in no case can the legislative history take the place of or be a substitute for an interpretation which is in direct contravention of the statutory provision concerned (5) Where the scheme of a statute clearly shows that certain words or phrases were deliberately omitted by the legislature for a particular purpose or motive, it is not open to the Court to add those words either by conforming to the supposed intention of the legislature or because the insertion or the omission suite the ideology of the Judges deciding the case. Such a course of action would amount not to interpretation but to interpolation of the statutory or constitutional provisions, as the case may be, and is against, all the well established cannot of interpretation of statutes.
272. The main reason behind the principles enunciated above is that the legislature must be presumed to be aware of the expanding needs of the nation, the requirements of the people and above all, the dominant object which the legislation seeks to subserve.
273. Thus, where the language is plain and unambiguous the court is not entitled to go behind the language so as to add or supply omissions and thus play the role of a political reformer or of a wise counsel to the legislature.
274. On the other hand, the counsel for the respondents have strongly urged that the entire argument of Mr. Seervai to the effect that the word ‘consent’ should be read into Article 222 is in vacuo and there is not the slightest vagueness or ambiguity in the words used in Article 222 to necessitate the reading of the word ‘consent’ therein. The counsel further urged that the attempt of Mr. Seervai is merely to create a so called cloud of suspicion and mystery and then to resolve it by asking the court to read consent into it. In other words, the counsel for the respondents have fully supported the propositions which we have adumbrated above.
275. Assuming for the sake of argument particularly in view of the farreaching consequences of our decision and the large magnitude of the arguments that have been addressed to us, that the dominant object of Article 222 is not very clear or unambiguous, we may discuss the legislative history of introduction of Article 222 in the Constitution as also the parliamentary debates or Reports of the Drafting or Select Committees as a direct result of which the said Article came into existence.
276. So far as the legislative history of the provisions prior to the Constitution regarding the functioning and the Constitution of High Court is concerned, we might start from the Government of India Act, 1915 (hereinafter referred to as the ‘1915 Act’) because the prior Acts an neither helpful nor germane for construing the questions at issue in these petitions. Sections 101 to 114 of the 1915 Act are the provisions which relate to the High Courts. It may be noted that in this Act, there was no provision at all for transfer of a Judge from one High Court to another. Section 101 provided that each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think at to appoint This is the precursor of Article 217 of our Constitution. It may be noticed that in the 1915 Act while the appointment of Judges vested in His Majesty the King but the power of appointment of Addl. Judges was vested in the Governor-General-in-Council although the Addl, Judges so appointed had the same powers as the Judges appointed by His Majesty. This complexion has been completely changed so far as the provisions of our Constitution are concerned Further, under Section 102 a Judge of a High Court was to hold office during His Majesty’s pleasure unless he resigned on his own. This provision has not been incorporated in our Constitution which has provided complete security of tenure to a Judge of a High Court who is to continue until he reaches the age of superannuation which is 62 years in the case of a High Court Judge and 65 years in the case of a Supreme Court Judge. The only manna in which a Judge can be removed before his term is by impeachment as provided under Article 124(2) read with the provisions of the Judges (Inquiry) Act of 1968. The other provisions are not relevant for the purpose of deciding this issue. Section 113 conferred powers on His Majesty to establish an Additional High Court in any territory in British India.
277. Thus, the only common feature which has been retained in our Constitution is regarding the appointment of Additional Judges of any High Court for a period not exceeding two years and while this provision was introduced by the 7th Amendment of the Constitution, it was slightly different from the one contained in proviso (i) to Sub-section (2) of Section 101 of the 1915 Act which may be extracted thus:
the Governor-General in Council may appoint persons to act as additional judges of any High Court for such period not exceeding two years, as may be required; and the judges so appointed shall whilst so acting, have all the powers of a judge of the High Court appointed by His Majesty under this Act;
In Article 224, the purpose, viz., arrears, is mentioned which was conspicuously absent from the 1915 Act perhaps because at that time there were no heavy arrears.
278. The next statute which merits consideration is the Government of India Act 1935 (hereinafter referred to as the ‘1935 Act’) which is merely a precursor of our. Constitution as most of its provisions are based on the pattern and structure of this Act The relevant sections dealing with High Courts are Section 213-231 and 253-256. Section 220 makes two marked improvements on the previous provisions of the 1915 Act — (1) that every Judge appointed by His Majesty held office until he attained the age of 60 years and not at the pleasure of His Majesty as provided by Section 101 of the 1915 Act, and (2) Section 220(2)(b) expressly states that a Judge can be removed on the ground of misbehaviour or infirmity of body or mind if the Judicial Committee of the Privy Council, on a reference made to it by His Majesty, reported that the Judge ought on any such ground be removed. This provision has been retained by our Constitution but the procedure of removal has been substituted by the procedure of impeachment as contained in Article 124(4) read with Article 218.
279. Although there is no specific provision for transfer of a High Court Judge from one High Court to another, an implied power seems to have been conferred in Section 220(2)(c) of the 1935 Act, which may be extracted thus:
The office of a judge shall be vacated by his being appointed by His Majesty to be a Judge of the Federal Court or of another High Court
280. It may be pertinent to note that Section 220(2)(c) provides that a Judge shall vacate his office either on his being appointed as a Judge of the Federal Court or of another High Court This provision does not contain any element or concept of transfer of a Judge from one High Court to another. What it contemplated is that if a Judge of a High Court was to be transferred he would have to be appointed to that High Court. Our Constitution, however, makes a clear distinction so far as this aspect of the matter is concerned inasmuch as Article 222 expressly uses the word ‘transfer’ rather than the word ‘appointment’ when a Judge is transferred from one High Court to another.
281. So far as our Constitution is concerned while Article 222 confers on the President the power of transferring one Judge of a High Court to another in consultation with the Chief Justice of India, Article 217(1)(c) provides that the office shall be vacated on his being appointed as a Judge of the Supreme Court or if he is transferred to any Other High Court. It may thus be noticed that Article 217(1)(c) is placed in Chapter V which deals with High Courts and may be extracted thus:
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.
282. While in the case of a Judge who goes to the Supreme Court, the word “appointed” is used to indicate that this is a fresh appointment in a higher Court, or rather the highest Court in the country, whereas when a Judge is transferred from one High Court to another, the word transfer’ in contradistinction to the word appointed’ as mentioned in Section 220(2)(c) of the 1935 Act, has been deliberately used which clearly shows that the two modes of vacation of office by a sitting Judge are quite different. We have mentioned this fact because Mr. Seervai has argued before us that the transfer of a Judge from one High Court to another results in vacation of his office and therefore must be construed to be a fresh appointment implying thereby that he could be transferred only if he gives his consent as when he is first appointed to the High Court. The fact that he gives his consent has to be implied, for he cannot be appointed as a High Court Judge against, his consent.
283. We have mentioned these circumstances in order to highlight the second argument of Mr. Seervai regarding interpretation of Article 217(1)(c) on the basis of which he contended that this would show that the transfer of a Judge under Article 222 amounted to a first or a fresh appointment in the transferee Court as the moment a Judge is transferred to another High Court, he vacates his office in the original High Court and assumes the charge of a new office only after taking the oath. It was suggested by Mr. Seervai that under proviso (c) “to Article 217(1) just as a Judge vacates his office on being appointed as a Judge of the Supreme Court, identical consequences follow when he to transferred to fray other High Court.
284. The Attorney General has rightly pointed out that the proviso itself makes a difference between vacating the office by a Judge who is appointed to the Supreme Court and a Judge who is transferred. A Judge ‘who is transferred merely vacates the office in a limited sense, namely, that he cannot act as a High Court Judge in the High Court where he was appointed but the fact remains that until he takes oath in the transferee High Court, he continues to be a Judge of the Original High Court. For these reasons, this argument does not appeal to us.
285. Finally, there is one more circumstance which clearly shows that a transfer cannot be treated as a first or fresh appointment. It would be seen that the heading of each Article which deals with the appointment of Judges clearly mentions this fact. Take for instance, Article 217 — the heading is appointment and conditions of a Judge of a High Court. Article 223 relates to appointment of acting Chief Justice and Article 224 deals with appointment of additional and acting Judges. It may be pertinent to note here that Article 223 comes immediately after Article 222 where the heading is transfer of a Judge from one High Court to another. The Constitution has thus itself brought out a clear distinction between transfer and appointment. Similarly, Article 224A deals with appointment of retired Judges at sittings of High Courts. There are number of other instances where the word ‘appointment’ is used in contradistinction to transfer in respect of authorities other than High Court Judges. This is, therefore, also an important circumstance to negative the argument of Mr. Seervai that as transfer amounts to a fresh or a first appointment in the transferee High Court and, therefore, consent becomes a necessary concomitant of such a transfer.
286. It may also be pointed out that whenever a legislature or constituent assembly uses a particular phrase in contradistinction to another phrase it is not possible to read the two phrases so as to indicate the same purpose, the instant case, the Constitution has used the word ‘appointed’ in the case of a Judge of the Supreme Court and ‘transfer’ in the case of a Judge of a High Court. A perusal of the language of Article 217(1) Proviso (c) leads to the irresistible conclusion and” logical inference that the founding Fathers have made a clear distinction between transfer and appointment. It is true that in both cases the office held by a Judge is vacated in a fictional sense because there is a complete change m the life of the Judge but that does not mean that the incidents of both these appointments .are the same, A Judge of the High Court when appointed as a Judge of the Supreme Court cannot be equated in any respect with a Judge of the High Court who is transferred to another High Court and continues to possess the same status, position and emoluments which is essentially different from a Judge of the Supreme Court. Mr. Seervai, however, submitted that both, Article 124 which relates to the appointment of a Supreme Court Judge and Article 217 which provides for the appointment of a High Court Judge do not mention anything about obtaining the consent of a Judge which has to be implied in both the cases. On a parity of reasoning it was submitted that where a Judge is appointed in a High Court or transferred to another Court, every time it is a new appointment as a result of which the Judge of the High Court oh being transferred to another Court has to take a fresh oath because he ceases to be a Judge in the Court of its orgin. It is true that on being transferred to another High Court a Judge ceases to be a Judge but then he ceases to be “a Judge of the transferor Court only and does not cease to be a Judge for all times to come so as to make his transfer in the transferee Court a fresh appointment. This is clear from para. 11(iii) to the Second Schedule to the Constitution which runs thus:
joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
287. It is true that in Para 41(iii) to Schedule 2 of Constitution this schedule joining time is mentioned on transfer from a High Court to Supreme Court or from one High Court to another and the word ‘appointment’ has not been used as such. That however makes no difference because this schedule only refers to a small matter of joining time which both the judges, viz., a judge appointed to the Supreme Court and the judge transferred, are entitled to avail, Nothing, therefore, turns upon the language of para 11 (iii) of the Second Schedule.
288. lastly, it was contended that the fact that a Judge who is transferred from the original High Court to another. High Court has to take oath suggests that his transfer amounts to an appointment and that is why the taking of a fresh oath becomes necessary. We are, however, unable to agree with this contention. It is obvious that when a Judge was appointed in the original High Court he had taken the oath of his office which bound him to act as a Judge of that particular High Court. Since by virtue of the transfer, the Court is changed, a fresh oath becomes necessary as a clerical formality to indicate that although his appointment as a Judge of a High Court does not cease to exist he discharges his duties as a Judge in another Court in respect of which he had not taken the oath of office. In these circumstances, it cannot be said that merely because a transferee Judge has to take a fresh oath the transfer becomes a new or a fresh appointment. Moreover, it is doubtful if the taking of a fresh oath is necessary at all because the warrant signed by the President appointing a person as a Judge of a High Court holds good in the transferee Court and the place is indicated by the notification issued under the authority of the President which really means that after the notification the warrant would have to be read to indicate that the Judge was transferred to the transferee Court where he is to act as a Judge. At any rate, we do not consider it necessary to go into this question in this particular case.
289. The last plank of the argument of Mr. Seervai was that no stress can be laid on the distinction between ‘appointment’ and ‘transfer’ because these are synonymous and interchangeable terms and in this connection he relied on a decision of this Court in His Holiness Kesavananda Bharti Sripadagalavaru v. State of Kerala where Chandrachud, J. (as he then was) observed as follows : (at p. 2027).
These are not words occurring in a school text-book so that one can find their meaning with a dictionary on one’s right and a book of grammar on one’s left. These are words occurring in a Constitution and one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in “a single complex instrument, in which one part may throw light on another,” so that “the construction must hold a balance between all its parts. A word is not crystal, transparent and unchanged; it is the skin of living thought and may very greatly in colour and content according to circumstances and the time in which it is used.
290. This Court merely held that in certain circumstances different words may not necessarily produce a change in the meaning and those observations have to be read with reference to the context. In the instant case, however, the plain and unambiguous language of Article 217(1) proviso (c) & Article 222 cannot be stretched to indicate that ”appointment’ and ‘transfer’ are synonymous terms when the constitutional provisions make it very clear that the power of transfer and the power of appointment are two different kinds of powers to be exercised in different ways. We, therefore, reject this part of the argument of Mr. Seervai as being without substance.
291. Having dealt with the legislative history and the setting of Article 222 which, as pointed out by us earlier, took its birth for the first time in our country in the form of Section 220(2)(c) of the 1935 Act and was later inserted in the Constitution after a full parliamentary debate. As we have already held that detailed speeches made on the floor of the house or the statement of Ministers are not admissible, we would confine ourselves only to those debates or statements which have been made by the sponsors or the architects of the Constitution itself and which immediately resulted in the introduction of Article 222 in our Constitution.
292. On September 16, 1949 one of the architects of our Constitution, Dr. Ambedkar while proposing the insertion of Article 128 (which became the present Article 222) highlighted the various aspects of the philosophy and the doctrine of transfer of Judges and speaking with persuasion and poignancy observed thus (Constituent Assembly Debates Vol. 11 (1949), p. 580):
The only question that we are called upon to consider is when a person is appointed as a judge of a High Court of a particular State, should it be permissible for the Government to transfer him from that Court to a High Court in any other State. If so, should this transfer be accompanied by same kind of pecuniary allowance which would compensate him for the monetary loss that he might have to sustain by reason of the transfer? 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 who is unaffected by local politics and 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 the 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 advise the Government in a manner which is not affected by local or personal prejudices.
293. Thus, the speech coming as it did Immediately before Article 222 was inserted completely demolishes the argument of Mr. Seervai because the apprehensions and fears expressed by him are found in the statement of Dr. Ambedkar and he had made it a point to emphasise that the power of transfer should serve three purposes:
(i) that it might be necessary to transfer a judge from one High Court to another to strengthen the transferee Court by importing better talent in which the said Court may be lacking.
(ii) that it might be desirable to have a Chief Justice from outside who is unaffected by local politics and local jealousies, and
(iii) that transfer should be made only on the ground of convenience and general administration and since the transfers could be made by the President in consultation with the Chief Justice of India, who is the highest authority in the country, it can be safely presumed that exercise of such a power would not be affected by local or personal prejudices.
294. These observations, therefore, furnish a complete answer to the two arguments of Mr. Seervai that ‘consent’ should be read into Article 222 or that the transfer amounted to a fresh appointment.
295. It may be mentioned that even in the Revised Draft, Article 222 ran thus: “The Framing of India’s Constitution” by B. Shiva Rao, Vol. IV p. 826:
222. Transfer of a Judge from one High Court to another.
(1) The President may transfer a Judge from one High Court to any other High Court within the territory of India.
(2) When a Judge is so transferred, he shall, during the period he serves as a Judge of the other 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.
296. It would be noticed that in this draft Article there was no mention of consultation of CJI by the President but this seems to have been later introduced as a result of the speech of Dr. Ambedkar as indicated above. Furthermore, it would appear from the Note appended by Mr. Santhanam in his book ‘Constitution of India’ as to how and under what circumstances the present Article 222 came to be incorporated in the Constitution where at page 169 the author says thus:
This is a new article inserted in the final stage. It was objected that this power might be used to punish a judge who might not be in the good books of the Central Government. It was also suggested that such transfer should be made only with the consent of the judge concerned. This suggestion was rejected because it might become necessary in the national interests to send a competent judge to some part of India in spite of to own inclinations. The President may be trusted not to use this power to the detriment of judicial independence.
(emphasis supplied)
297. This note clearly shows that even at the time “when Article 222 was taking its birth there was some talk of making the transfer with the consent of the Judge concerned but this idea was given (sic) when it was pointed out that in the national interest it may be necessary to send a competent judge to another High Court and this policy may be stalled toy the judge by withholding his consent. In other words, the idea of ‘consent’ havings been conceived, discussed and rejected clearly shows that the Founding Fathers deliberately omitted the word ‘consent’ from Article 222 and that knocks the bottom out of the argument of Mr. Seervai that if the Founding Fathers rejected the concept of ‘consent’, the Court should still read h into the Article which is patently against all canons of interpretation of statutes.
298. It was suggested that the note of Mr. Santhanam cannot be treated to be the last word in the matter. We are unable to agree with this contention. Santhanam is not merely the author of the Constitution but he was also a Member of the Drafting Committee and the Note fully shows that the speech made by Dr. Ambedkar regarding Article 222 (which in its draft form was Article 128) was incorporated according to the guidelines indicated by Dr. Ambedkar. The Note, therefore, finds ample support from what Dr. Ambedkar had said. No material has been placed before us to show that the Note of Mr. Santhanam was wrong either on point of fact or on a point of law. In our opinion, therefore, read with the speech of Dr. Ambedkar, the Note of Mr. Santhanam in regard to Article 232 clinches the issue and no further argument on this question, can be entertained.
299. Finally there is yet another aspect to which we may advert in order to understand the spirit, philosophy and pattern of our Constitution. Shiva Rao in The Framing of India’s Constitution’ (Vol. IV) refers to various speeches made after the adoption of the Constitution. To begin with, Dr. Ambedkar while explaining the various sources of the Constitution reminded the Member that before finally drafting the Constitution, the Member of the Drafting Committee had before them almost all the important Constitutions of the big countries of the world. The American Constitution was considered, the Australian Constitution was also taken into account and comparisons were made with American, Canadian, South African and Australian Constitutions. Dr. Ambedkar further pointed out a distinctive feature in our Constitution which he highlighted thus: (‘The Framing of India’s Constitution’ by B. Shiva Rao, Vol. IV, p. 936) In making comparisons on the basis of time consumed, two things must be remembered. One is that the Constitutions of America, Canada, South Africa and Australia are much smaller than ours. Our Constitution as I said contains 395 Articles while the American has just seven articles, the first four of which are divided into sections which total up to 21, the Canadian has 147, the Australian 128 and the South African 153 sections. The second thing to be remembered is that the makers of the “Constitutions of America, Canada, Australia and South Africa did not have to face the problem of amendments. They were passed, as moved. On the other hand, this Constituent Assembly had to deal with as many as 2,473 amendments. Having regard to these facts the charge of dilatoriness seems to me quite unfounded and this Assembly may well congratulate itself for having accomplished so formidable a task in so short a time.
300. Similarly, Dr. Rajendra Prasad, who was President of the Drafting Committee, observed thus : (The Framing of India’s Constitution by B. Shiva Rao, Vol. IV, p. 936).
We considered whether ‘we should adopt the American model or the British model where we have a hereditary king who is the fountain of all honour and power, but who does not actually enjoy any power. All the power rests in the Legislature to which the Ministers are responsible. We have had to reconcile the position of an elected President with an elected Legislature and in doing so we have adopted more or less the position of the British monarch for the President.
XX XX Then we come to the Ministers. They are of course responsible to the Legislature and lender advice to the President who is bound to act seconding to, that advice. Although there are no specific provisions, so far as I know, m the Constitution itself making it binding on the .President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and the President, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a constitutional President in all matters.
301. Dr. Prasad expressed a wish that by working the Constitution, the people of the country will evolve a convention by which the advice of the Council of Ministers would be binding on the President and his historical words have proved to be true and have now taken a constitutional shape because by virtue of the Constitutional 42nd Amendment, the advice of the Council of Ministers has been made binding on the President and he has to act on such advice. Thus, a convention which was ingrained in the Constitution has how taken a constitutional shape.
302. Lastly, Dr. Rajendra Prasad expressed his view that the Constitution undoubtedly made’ clear provisions for an independent judiciary and observed thus : (The Framing of India’s Constitution by Shiva Rao (Vol: IV), p. 954) We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of executive from judicial functions and placing the Magistracy which deals with criminal cases on similar footing as civil Courts. I can only express the hope that this long overdue reform will soon be introduced in the States.
303. We have mentioned these facts at this stage for two reasons. In the first place we wanted to illustrate and emphasise the actual philosophy of the Constitution so that the various articles may be read in the light of the views and the desire expressed: lay the Founding Fathers Secondly, the fact that our Constitution is based not on the American but on the British Pattern is established from the observations extracted above and the internal evidence furnished: by the various provisions of the Constitution itself. It is true that we have borrowed some provisions from the American Constitution and others from the Japanese Constitution but by and large our Constitution is fashioned on the British pattern. Therefore,” white Considering the doctrine of privilege of the doctrine of candour it would be safer to rely on English cases rather than the American doctrine. However, this aspect of the matter will be dealt with at the appropriate stage.
304. It was next contended both by Mr. Seervai and Dr. Singhvi that non-consensual transfers of High Court Judges’ are punitive in nature and amount to punishment. Detailed contentions in this regard have already been narrated by us when we dealt with their contentions 6n this point. One of the cardinal points made out by the learned Counsel for the petitioners against non-consensual transfers was that if a transfer, is made without the Consent of the Judge it will arm the Central Government with a strong weapon to punish a High Court Judge who either does not share the ideology of the Government or is not prepared to oblige it, by compelling him to toe the line of the Government at the risk of being transferred. Reliance was placed, in support of this argument on a large number of transfers that Were made during the emergency resulting in writ petitions filed in the Gujarat High Court in Seth’s-case where this very point was argued on behalf of one of the Judges who had moved the petition before the Gujarat High Court. It was also pointed out that in the supreme. Court both Bhagwati and Untwalia, JJ., dissented, from the majority view and particularly Untwalia, J. mentioned the fact that the large number of transfers had created a panic. It is true that there were, quite a few transfers during the emergency which were not in consonance with the spirit of Article 222 and that is why the Government had conceded this fact and took steps to revoke the transfers by retfansferring, almost all the Judges to the High Courts from where they had been transferred. Even so the Government insisted, that the point of law involved should be decided by this Court as a result of which the majority judgment held that Article 222 does not contemplate that a transfer should foe made only with the consent of the Judge, concerned. Taking the argument at its face value, we cannot jump immediately to the conclusion that in all cases non-consensual transfers would amount to a punishment so as to arm the Government with a weapon to punish a Judge for not toeing the line of the Government, It is a well-known saying that one sparrow does not make a summer, it, seems that it is neither logical nor congruent to draw an irresistible inference merely from the massive transfers made during the emergency inspired by particular motive to the conclusion that the power of the President enshrined fin Article 222 would be exercised for collateral reasons always in future also more particularly so when this Court in the majority judgment in Seth’s case had laid down the guidelines for transferring a Judge from one Court to another and also laid very great stress on the process of effective consultation, the possibility of abuse of power is completely ruled out. This Court in that case had laid down sufficient safeguards against a wrong or colourable exercise of power by the President under Article 222. Therefore, there is no reason to presume that any order which is passed by the President under Article 222 henceforward is bound to be mala fide or colourable and even if it is in a particular case or cases, it is doubtless subject to judicial review.
305. It was then contended that a transfer of a Judge from one High Court to another entails evil consequences inasmuch as it uproots the Judge from his hearth and home and transplants him in 4 new and alien place where he has to start his life or career anew and face Several personal difficulties and inconveniences. Once it is conceded that the power of transfer under Article 222 is to be exercised in public interest, then any in convenience that is felt by the Judge would have to yield to the larger interest of the community so as to make the said article workable. Although Article 222 is an extraordinary power, whenever a person accepts judgeship of a High Court he is fully aware that during his career as a Judge the power under Article 222 could be exercised by the president without his consent and if knowing this he accepts the position of a High Court Judge, he cannot be heard to say that he ought not to be transferred because he would suffer lot of inconvenience.
306. It is true that the transfer of a High Court Judge is an extraordinary phenomenon and is resorted to very sparingly. Though not the usual incident of the career of a High Court Judge as in the case of other services, particularly the subordinate judiciary the provision for transfer is undoubtedly there and has to be worked out in suitable cases. We shall deal with this aspect of the matter in greater detail when we come to the limb of the argument regarding the policy of general transfers.
307. Furthermore, the very concept of transfer under Article 222 being a punishment is highly derogatory to the high constitutional position that a High Court Judge holds. Such a constitutional appointment, which makes a Judge a constitutional functionary and not a Government servant, more so when he obtains certain special privileges having regard to the high position he holds, is against the very concept of penalty or puinshment. It is manifest that when a person is punished for an offence or a mistake or an error, then he is to undergo some penal process. In the case of a Judge who is transferred, no such penal consequences are at all visited because on the plain term of Article 222 the Judge has to get special facilities before being transferred to the transferee High Court. Clause (2) of Article 222 clearly provides that a transferred Judge is only 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 fix. Thus, the granting of compensatory allowance to a Judge in lieu of transfer completely destroys the concept that the transfer involves a stigma or a punishment. You don’t have to award a person additional facilities if you punish him und if you do, then the act cannot amount to a punishment. Apart from the allowances, the High Court Judges (Conditions of Service) Act and the Rules made therein clearly provide that a Judge who is transferred from one High Court to another can always avail of the special leave concession rules by visiting his home State, along with his family, at Government cost once a year. The Judges Rules, as amended, further enjoin that the Judge must be supplied with a free furnished house which under the Amendment Act of 1981 is not even to be treated as a perquisite under the Income-tax Act. It is true that some of these facilities are available to a Judge in his original High Court also but the totality of the facilities taken into consideration undoubtedly seek to make him as comfortable as possible in the transferee Court also.
308. In view of the speeches and statements of the Members of the Drafting Committee particularly’ those of Dr. Ambedkar Article 222 (which was 128 in Draft Constitution) was introduced not by way of punishing a Judge but to import better talents in other High Courts and enable the Judge to work in a free and fair atmosphere where he can work without any local influence. Indeed, if our Founding Fathers were alive today and were to be told to their utter dismay that transfer amounts to a punishment, they would have got the greatest shock of their life.
309. Far from being a punishment the transfer of a Judge does not involve any stain or stigma nor even the slightest reflection oh his legal functioning or his judicial character or integrity. The transfer of a Judge contemplated by Article 222 is in the nature of a response to a call of duty in the larger national interest of the country in order to maintain and ensure absolute purity of judicial administration. On being transferred the Judge would find himself free to work in an independent atmosphere untrammelled by any provincial or parochial consideration, undaunted by any external or internal influences or local pulls or pressures and uninfluenced by the considerations of class, caste or creed. He would also generate much greater confidence in the people to whom he imparts justice which is bound to enhance his judicial prestige and as a logical result would subserve the concept of independence of judiciary. For a true and conscientious Judge there can be no higher honour than to create a feeling that justice is not actually done but also appears to have been done, the latter being more important and fundamental quality of judicial approach. The apprehension that a Judge on being transferred to another State is likely to face a hostile Bar is merely an anathema and an illusion which has neither a factual nor a legal existence. If the Judge’s behaviour towards the Bar is polite and courteous ‘and he gives a little accommodation to the Bar he is bound to win laurels of the Bar. In fact, the Bar always welcomes an outside Judge who is likely to build up a new judicial structure and establish a flawless and unblemished reputation. This is not merely a pious wish or an ideal dream but a stark and speaking reality which is, evident from the performance and reputation of Judges who had been transferred outside their States and had proved to be not only successful but memorable Judges.
Judges transferred as CJ/Judges outside their State:
1. Justice Sinha of the Patna High Court was transferred and appointed as CJ in Nagpur High Court.
2. Justice Sarjoo Prasad of the Patna High Court was appointed as CJ of Assam and later of Raj as than High Courts.
3. Justice C.P. Sinha of Patna High Court to be CJ of Assam High Court.
4. Justice Malhotra of Allahabad High Court to be CJ of Assam High Court.
5. Justice Narasimham from Orissa to Patna as CJ 6″. Justice Khalil Ahmed from Patna to Orissa as CJ
7. Justice A. T, Harries from Punjab to Calcutta as CJ
8. Justice S.R. Dasgupta from Calcutta to Karnataka High Court
9. Justice Ansari from Andhra Pradesh to Kerala High Court
10. Justice A.D. Koshal from Punjab & Haryana High Court to Madras High Court.
310. Apart from these there were other transfers, a list of which was submitted by the counsel for the respondents.
311. These Judges have left an indelible imprint in the judiciary of the State where on transfer or appointment they worked. We might also mention that the Solicitor General in his statement at the Bar drew our attention to the excellent manner in which, our colleague Justice A.D. Koshal shaped himself when he was transferred to Madras during the emergency. The Solicitor-General said that he had left behind an unparalleled reputation of being a very sharp and independent Judge. These circumstances therefore, fully justify transfer of Judges from one High Court to another.
312. The Attorney General with his usual ingenuity submitted a very plausnow that transfer of a Judge from one High Court to another under certain circumstances even though inconvenient cannot by any process of reasoning amount to a reflection or stigma. It was submitted by the Attorney-General that there may be two contingencies where a Judge may or may not give his consent. One type of Judges may consent to the transfer against the background of public interest and the Judge responds to the sensitive call of duty ignoring his private losses and inconveniences and gives his consent to the said transfer. There may be other type of Judges who care more for their personal conveniences or losses and refuse to give their consent. The hardship involved in both the cases is the same. The only question to consider is as to whether or not Article 222 operates to the disadvantage of a more conscientious Judge or of a Judge who is not willing to meet the demands of public interest or, if we may say so, national interest, for either public or national interest may some time make it not only desirable but imperative that a Judge should be transferred
313. Furthermore, the Attorney General pointed out that there may be several factors which may affect the administration of justice or the confidence of the community which may involve the Judge himself on a purely environmental basis. For instance, the atmosphere may be vitiated by his close relations or friends even without the knowledge of the Judge who may remain innocent and become an unfortunate victim of environments. In such cases, his continued presence in the High Court is bound to vitiate the very atmosphere in which justice is to be dispensed with so that a conscientious Judge would himself opt for a transfer outside his State. We have to take into account the advice given by the CJI in one of the Seminars that where close relations of a Judge or the Chief Justice practise in the same Court and are likely to gain undue advantage, the concerned judge should himself, in obedience to the keen sense of justice which every Judge possesses opt to be transferred to some other High Court. This is undoubtedly a very valuable advice which seems to have been given by our CJI to the Judges in the country.
314. Mr. Seervai in his anxiety to drive home his opposition to non-consensual transfers submitted that if the father-Judges or the uncle-Judges are transferred from one High Court to another and the relations who exploited him also follow suit and start practice in the transferee Court, could such a transfer be a sufficient cure for this malady? The answer to this argument is very short and simple. Where a Judge is transferred because the environment or the atmosphere is not congenial or conducive to administration of impartial justice, he does so as a conscientious Judge responding to a call of duty but where his sons or relations follow him in the transferee Court then it becomes the most cogent and reliable evidence to show that the Judge openly allows himself to be exploited by his sons or relations and this per se would be conclusive proof of misbehaviour for which he can be impeached under Article 124(4) read With Article 218. If these facts are proved, then he will have to be removed, for no Court can ever accept a plea of the Judge that even after he was transferred to some other Court his close relations followed him there without his knowledge.
315. Another difficulty which was pointed out before us was regarding the language problem. This, however, appears to be of a very minor significance as compared to various plus points indicated above. After all, the British Judges could administer justice for two centuries in our country without knowing our language. Furthermore, at the High Court level there are ample facilities for translating the record into the language with which the Judge is conversant, and if necessary these facilities could be increased. The Law Commission suggested that even if transfers are made from one High Court to another they could be made on zonal basis which will eliminate the language difficulty to a great extent.
316. For these reasons, therefore, we are unable to accept the argument of the counsel for the petitioners that non-consensual transfer amounts to punishment or a reflection on the integrity of the Judge concerned or can in any way be described as penal.
317. The next pillar of the argument of Mr. Seervai regarding non-consensual transfer was that such a transfer would seriously affect and impair the independence of judiciary. Dr. Singhvi who followed him not only adopted this argument but elaborated it by giving illustrations from various constitutional provisions which we shall deal presently.
318. Dr. Singhvi submitted that non-consensual transfer was against the very spirit of the doctrine of separation of powers contained in our Constitution. We have already shown from the concluding speeches of the Members of the Drafting Committee that our Constitution is based mainly on the British pattern although some provisions of the American Constitution have been borrowed. Secondly, a detailed survey of the various provisions of the Constitution dealing with judiciary would clearly reveal that our Constitution does not envisage a complete separation of powers between the judiciary and the executive as such. What our Constitution has done is to effect no separation at powers as such but separation of judicial and executive functions. In achieving this object, our Constitution has particularly relied on the American Constitution while rejecting the British pattern of conventions. For instance, the judiciary is absolutely independent and supreme in the decision-making, process, that is to say, in deciding cases between men and men and State and man without being influenced by any governmental or official consideration. In England, in spite of the independence of judiciary even the highest judiciary does not have the power to strike down a law made by the Parliament. In contradistinction to this, our Constitution confers absolute powers on the High Courts and the Supreme Court to strike down not only legislations brought about by the legislature but also Acts passed by the Parliament and the peak of the judicial power reached when in Kesavananda Bharati’s case (supra) this Court held that the amending power enshrined in Article 368 of the Constitution could not be amended so as to affect the basic structure of the Constitution. We might mention that it has, however, not been doubted by counsel for any of the parties that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution, while this absolute judicial power has been conceded by the Constitution to the judiciary, a certain amount of executive control has already been vested in the higher judiciary in respect of the subordinate judiciary. At the same time the power of appointment of High Court Judges including the CJ or Supreme Court Judges, including the CJI, vests entirely in the executive i.e., the President of India, who acts on the advice of Council of Ministers. Here again, this executive power is not absolute and has to be exercised in consultation with the C.J.I. in the case of appointment of Supreme Court Judges, as also in consultation with the CJI and the Governor of the States concerned in case of the appointment of Chief Justice of the High Court–in the case of appointment of High Court Judges, the Chief Justice of the concerned High Court is also to be consulted. This Court has in several cases, which need not be repeated here, clearly held that consultation contemplated by the Constitution must be full and effective and by convention the view of the concerned CJ and CJI, should always prevail unless there are exceptional circumstances which may impel the President to disagree with the advice given by these Constitutional authorities.
319. Thus, in fine, the doctrine of separation of power, so far as our Constitution is concerned, reveals an artistic blending and an adroit admixture of judicial and executive functions. The Constitution has taken the best of both the British and the American Constitution. In order to illustrate our point and to show that the separation sought to be achieved by our Constitution is not absolutely or completely separate, let us compare our Constitutional provisions with those of the Amercian Constitution.
320. Under the Amercian Constitution Supreme Court Judges are appointed by the President with the advice and consent of the Senate and no qualifications are necessary for the appointment to the Court nor are any stipulations mentioned therein. The Judges, however, serve for life during good behaviour and may be removed by impeachment almost in the same manner as provided for in our own Constitution. Section 1 of Article I of the American Constitution runs thus (American Constitution Law by Rocco J. Tresolini (1959 Edition):
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
And Section 1 of Article II reads thus (American Constitutional Law by Rocco J. Tresolini 1959 Edition):
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows:
321. Thus, under Section 1 of Article I while legislative powers completely vests in the Congress, the executive powers vests in the President. Here our Constitution makes a distinct departure by making the President, in whom the executive power vests, to be bound by the advice of the Council of Ministers. Therefore, under our Constitution for all practical intents and purposes the executive power vests in the Council of Ministers only and the President is bound to accept the advice of the Council of Ministers. Proviso to Clause (1) of Article 74 may be extracted thus:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
322. Under this proviso, the President has no doubt the power to require the Council of Ministers to reconsider the advice if he (President) entertains any doubt in respect of the advice tendered to him, but if the same advice is given to him after reconsideration, the same is binding on him. Clause (2) of Article 74 bars any inquiry by a Court into the nature of the advice tendered by the Council of Ministers to the President.
323. Thus, under our Constitution the executive power does not vest absolutely in the President as in the case of America where the President has got vast powers and is assisted by his Advisers who are called Secretaries.
324. Then we come to Article III of the U.S. Constitution, which is most relevant for our purpose. Section 1 of the said Article runs thus (American Constitutional Law by Rocco J. Tresolini (1950 Edition):
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The, Judges, both of supreme and inferior Courts shall hold their office during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.
325. Thus, the Judicial power vests completely in the Supreme Court or such inferior Courts as the Congress may from time to time establish or ordain. Section 2 of Article III provides that the judicial power shall extend to all cases in law and equity arising under the Constitution, including laws of the United States, Treaties made and cases affecting Ambassadors, Ministers and Consuls, etc.
326. Thus, in the American Constitution by virtue of the fact that the entire judicial power is vested in the Supreme Court or other Courts, the appointments have to be made by the Supreme Court, unlike the provisions of our Constitution where appointments are to be made by the President in consultation both with judicial and executive authorities as indicated above. Therefore, in expounding the concept of separation, the essential distinctive features which differentiate our Constitution from the American Constitution must be kept in mind.
327. An attempt was made by Mr. S.P. Gupta, one of the petitioners, to establish that even, under our Constitution the judicial power exclusively vests in the CJI who takes the place of Council of Ministers. This argument is wholly unacceptable and cannot be countenanced because it is against the clear and express provisions of Articles 224, 222 and 217 of our Constitution. However, this matter has been elaborately dealt with by brothers Desai and Venkataramiah, JJ. and I entirely agree with their opinions and have nothing useful to add so far as this aspect of the matter is concerned.
328. Lastly, on the question of separation of powers, apart from what we have said it may be noticed that so far as framers of our Constitution are concerned they had deliberately rejected the theory of complete insulation of the judicial system from the executive control. During the formative process of our Constitution though jurists like Shri B.N. Rau and Dr. Ambedkar wanted to give larger powers to the CJI or to a Council of State which may be appointed so as to be a judicial Body but these ideas were not accepted and ultimately the Constitution emerged as a valuable document which vests complete power in the President. The facts will be borne out from the observations made on pages 338-339 of Shiva Rao’s Framing of India’s Constitution (Vol. IV), and on pages 128-132 of the Indian Constitution Cornerstone of a Nation by O. Austin. Even an attempt of Dr. Austin and others to introduce instruments of instructions to provide guidelines for the action to be taken by the President was rejected.
329. In fact, the method of appointment adopted by our country seems to have been followed in every democratic country except the United States where, as already shown, the Judges are not appointed by the executive excepting the Chief Justice of the Supreme Court but by the judiciary. Even in America, the Federal Court Judges of the States are not appointed by the judiciary. Similarly, in France, West Germany, Japan, Malawi and Sri Lanka the power of appointment of Judges vests in the executive (vide Garner. Political Science and Government pp. 726-727; Harold Laski: Grammar of Politics, pp. 545-548; 80th Report of the Law Commission, pp. 7-11; and Basil; Commentary on the Constitution of India (4th Ed.) Vol. 3, pp. 77-79).
330. It would appear that our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary is in our opinion the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power in the President, the following important elements are introduced:
(1) a popular element in the matter of administration of justice, (2) linking with judicial system the dynamic goals of a progressive society by subjecting the principles of governance to be guided by the Directive Principles of State policy, (3) in order to make the judiciary an effective and powerful machinery, the Constitution contains a most onerous and complicated system by which Judges can be removed under Article 124(4), which in practice is almost an impossibility.
(4) in order to create and subserve democratic processes the power of appointment of the judiciary in the executive has been vested so that the head of the executive which functions through the Council of Ministers, which is a purely elected body, is made accountable to the people.
331. If absolute powers were to be vested in the judiciary alone for all its spheres of activities (appointment, retirement, removal, etc.) then the element of absolutism may have crept in, resulting in irreparable harm to the great judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions.
332. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.
333. There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method–
(1) by guaranteeing complete safety of tenure to Judges except removal incases of incapacity or misbehaviour which is not only a very complex and complicated procedure but a difficult and onerous one.
(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. This important Directive Principle enshrined in Article 50 has been, carried out by the CrPC, 1973 which seeks to achieve complete separation of judiciary from the executive.
(3) so far as the subordinate judiciary (is concerned the provisions of Arts, 233-236 vest full and complete control over them in the High Court. Only at the initial stage of the appointment of munsiffs or the District Judges, the Governor is the appointing authority and he is to act in consultation with the High Court but in all other matters like posting, promotion, etc., as interpreted by this Court in Samsher Singh’s case , the High Court exercises absolute and unstinted control over the subordinate judiciary. Promotion, holding of disciplinary inquiry, demotion, suspension of Sub Judges lie with the High Court and the Governor has nothing to do with the same. Hinting on the nature of the separation of powers brought about by our Constitution, this Court in Chandra Mohan v. State of U.P. made the following observations (at p. 1993):
The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including inappropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction.
334. This Court has in several cases held that the condition of consultation which the Governor has to exercise implies that he would have to respect the recommendations of the High Court and cannot turn it down without cogent reasons and even if he does so, it is manifest that his order is always subject to judicial review on the ground of mala fide or exceeding his jurisdiction.
335. These are sufficient safeguards to ensure the independence of judiciary. The argument of Dr. Singhvi goes a step further so as to import the American concept of absolute independence in our Constitution which, however, is not permissible because as indicated above the provisions relating to judiciary of our Constitution and American Constitution are essentially different.
336. Dr. Singhvi then advanced the same argument which was put forward by Mr. Seervai that a transfer without consent would be punitive both in concept and consequences and would promote a relationship of master and servant which is Inapplicable to the case of Judges and the Chief Justices, We are, however, unable to accept this extreme argument because for the reasons that we have already given a transfer in public interest is an extraordinary provision which does not entail any stain or stigma and is a constitutional step which completely excludes the concept of master-servant relationship.
337. Dr. Singhvi later rightly laid greater stress on the nature and extent of the consultative process in the case of transfer. It was also submitted that even if a Judge is transferred individually, public interest, which leads to his transfer, would also have to be examined by the court: We propose to examine this aspect in greater detail when we deal with Transferred Case No. 24/81. At the moment it is sufficient to state that for the reasons that we have already given a non-consensual transfer cannot be treated as punitive, penal or punishment. Furthermore, we might state here that after a general policy is evolved by the Government for transfer of Judges of the High Court in order to ensure the goal of having 1/3rd Judges in each State from outside the State, such a policy Would be fully justified not only on the ground of public interest but in the larger interest of the country as a whole to promote integration and crush parochialism and provincialism. If this is done, then the question of effective consultation would have to be looked from a different angle. Similarly, a general policy to have CJs from outside in every State would serve the same national interest and there also the effective consultation is to be confined only to the just exceptions that may be made while pursuing this policy.
338. The last question that remains to be determined is as to whether the proposal for transfer of Judges from one High Court to another should emanate from the CJI or from the President. In this connection, the Solicitor-General has produced a memorandum showing the procedure to be adopted in connection with the appointment and transfer of Judges. This memorandum cannot take the place of a statute or a constitutional document. It merely prescribes, the manner in which the proposal can be processed. From a plain language of Article 222 it is manifest that the proposal for transfer can emanate either from the CJI or from the President through the Union Minister for Law and Justice. What is Important is whichever authority, initiates the transfer, the conditions prescribed under Article 222 must be complied with, viz.,
(a) if the proposal emanates from the President, he must ascertain the views of the CJI which are entitled to great weight, and
(b) as Article 222 contemplates consultation with the highest judicial authority in the whole country, it is obvious that the CJI also represents the Judges or the Judges who are sought to be transferred.
339. As a logical result of this concept, it would be necessary for the CJI, on receiving the proposal from the President, to ascertain the views of the Judge concerned and his personal circumstances or objections, if any, and then after applying his mind to them, place the same before the President through the Law Minister. Thereafter, the Matter would have to be processed according to the Rules of Business and advice sent to the President for formal orders.
340. Where, however, the proposal emanates from the CJI himself, then he should collect the necessary facts and examine the reasons given by the Minister concerned for the transfer and before giving his opinion or advice to the Minister he would have to consult the Judge concerned and ascertain his views and give due consideration to them. Thereafter he should also communicate the views expressed by the Judge concerned–whether against or in favour of the proposal–to the President through the Minister concerned so that even if the CJI does not agree with the view of the Judge, the President may be in a position to give his decision finally one way or the other.
341. These are the essential requirements of Article 222 which are briefly contained in the memo, though not strictly in consonance with what we have said above. We might hasten to add here that although the Constitution does not mention either the Chief Minister or the Governor of the State being consulted in the manner of. transfer of a Judge from one High Court to another but the memo provides for this procedure in order to solve some practical difficulties because when a Judge is transferred from one State to another the transferor State must be told, to make necessary arrangements for appointing his successor and similarly at the other end the receiving State would have to make adequate arrangements for the residence and other facilities which are to be given to the Judge concerned. In this process, the Chief Minister or the Governor of the two States may express their opinion but the President is not bound under Article 222 to accept their views. It does not appear to be the intention of the Memo to supplant. two additional authorities for the purpose of consultation, for that would be in direct contravention of Article 222 which merely stipulates consultation with the CJI and impliedly the Judge concerned. Thus, the information given by the Chief Ministers and the Governors of the States is merely for the limited purpose of ascertaining their views and other matters referred to above and is not, therefore, a part of the consultative process enshrined in Article 222 otherwise, if additional authorities are introduced for the purpose of being consulted, then the Memo will be clearly violative of Article 222.
342. Thus, the Memo, while prescribing that the proposal should emanate from the President does not exclude the other alternative, viz., that the proposal should emanate from the CJI. In Transferred Case No. 24/81 it is clear that the proposal of transfer of Justice K.B.N. Singh and others emanated from the CJI and that in our opinion was perfectly Legal, and constitutional and does not offend the provisions of the Memo as suggested by counsel for the petitioners because the Memo, does not and cannot in any way debar the CJI from initiating the proposal if he wants to do so.
343. This, therefore, disposes of all the contentions of the counsel for the parties so far as the various aspects of interpretation of Article 222 is concerned. On a, consideration, therefore, of the facts, circumstances and authorities the position is as follows:
(1) that Article 222 expressly excludes ‘consent’ and it is not possible to read the word ‘consent’ into Article 222 and thereby whittle down the power conferred on the President under this Article.: (2) that the transfer of a Judge or a CJ of a High Court under Article 222 must be made in public interest or national interest, (3) that non-consensual transfer does not amount to punishment or involve any (sic).
(4) that in suitable cases where mala fide is writ large on the face of it, an order of transfer made by the President would be subject to judicial review, (5) that the transfer of a Judge from one High Court to another does not amount to a first or fresh appointment in any sense of the term, (6) that a transfer made under Article 222 after complying with the conditions and circumstances mentioned above does not mar or erode the independence of judiciary.
344. For the reasons given above, the contentions of Mr. Seervai, Dr. Singhvi and others fail and are overruled.
Point No. 3 – Policy of General Transfers’
345. We now come to the question of evolving a general policy of transfers (for short, to be referred to as the ‘Policy’) of Judges of Chief Justice from the home State to other States so that each State or a majority of them has a GJ from outside. Policy has two important limbs–(1) transfer of CJ or Judges from one High Court to another, and (2) recruitment of one-third judges in each High Court from outside the State in which the High Court is situate. The earliest roots and the foundation for evolving the aforesaid policy are to be found even when Article 222 was in the process of its birth. The most prophetic and pregnant observations of Dr. Ambedkar give a clear clue to the desire expressed and the goal sought to be achieved by introducing Article 222. these lines from his speech may be extracted thus:
Secondly, it might be desirable toimport a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government.
(Emphasis ours) (p. 580, Constituent Assembly Debates Vol. 11 (1949).)
346. These observations have a historical significance having been made by one of the greatest jurists, constitutionalist and one of the eminent Founding Fathers of our Constitution and perhaps the highest tribute that .we can pay to the dedicated service of Dr. Ambedkar is to evolve a policy and thus fulfil the pious wish and the last desire of the great jurist
347. Nevertheless, the idea of evolving the Policy came to be seriously thought of when the States Reorganisation Commission (hereinafter referred at as the ‘SRC’) was entrusted with the arduous task of recommending reorganisation of States on linguistic basis–a step which was long overdue having been the subject of one of the earlier Resolutions passed by our freedom fighters–a solemn promise made to the Nation by its political leaders to be fulfilled as soon as the country attained freedom. This process of reorganisation was not a bed of roses but was fraught with grave consequences leading to parochialism and provincialism which, if not properly checked, controlled or safeguarded, might have brought about disintegration of the entire country. Perhaps this was one of the main reasons why the SRC being fully alive to these dangers tried its best to see that the reorganisation of States did rot lead to disintegration and accordingly suggested a number of measures including a strong and independent judiciary free from parochial and fissiparous tendency. We, therefore, start the question of policy of transfers with the Report of the SRC which tried to tackle the second limb of the policy of importing one-third Judges in the High Court from outside. In this connection, it might be appropriate to refer to certain observations made by the SRC in the concluding portions of its Reports:
846. We have now come to the end of our appointed task. The problem of reorganisation of States has aroused such passions and the claims which have been made are so many and so conflicting that the background against which this whole problem has to be dealt with may quite often be obscured or even forgotten. In order that the recommendations which we have made may be viewed in proper perspective, we should like to emphasise two basic, facts. Firstly the States, whether they are reorganised or not, are and will continue to be Integral parts of a Union which is far and away the more real political entity and the basis of our nationhood. Secondly, the Constitution of India recognises only one citizenship, a common citizenship or the entire Indian people, with equal rights and opportunities throughout the Union.
348. Speaking in the same strain the SRC further observed thus:
849. Unfortunately, the matter in which certain administrations have conducted their affairs has itself partly contributed to the growth of this parochial sentiment. We have referred earlier to the domicile rules which are in force in certain States, governing eligibility to State services. The desire of the local people for the State services being manned mainly be “the sons of the soil” is understandable, but only up to a point. When such devices as domicile rules operate to make the public services an exclusive preserve of the majority language group of the State, this is bound to cause discontent among the other groups, apart from impending the free flow of talent and imparting administrative efficiency.
349. The SRC repeated the same concept in paras 854 and 856 of its Report thus:
854. There are certain other measures which, if adopted, will, we hope, help in correcting particularist trends and also in securing greater inter-State coordination for the efficient implementation of all-India policies.
856…The Central and State Governments have to work in very close cooperation in executing important development projects, which necessitates that technical personnel should be recruited and trained on a common basis and that they should have uniform standards of efficiency and the feeling of belonging to common and important cadres.
(Emphasis ours)
350. The SRC made the following further observations in paras 868, 870 and 871:
868. From the point of view of national unity, it is also of great importance that there should be closer understanding between the north and the south. All institutions and establishments which help to bring about such an understanding should receive particular encouragement from the Government of India…
870. The proposals which we have made in the preceding paragraphs are intended to bring about greater administrative integrity and to provide against any particularist trends being promoted within the administration itself or in the country at large. Important as these measures are, it is obvious that they are by themselves not adequate to give a deeper content to Indian nationalism. National unity can develop into a positive and living force capable of holding the nation together against the disruptive and narrower loyalties only if there is a real moral and mental integration of the people. Fortunately, forces making for such integration are already at work. What is necessary is that nothing should be done to impede their freeplay. We should like to say something on this subject before we conclude.
871. India is now on the eve of vast economic and social changes. These changes must affect every institution and will call for a constant review of our traditional methods of thought and ways of life.
351. Here also the SRC took special care to lay great emphasis on the feelings of commonness, unity and integration in all spheres of activity so as to give a deeper content to independence and nationalism. In para 861 of its report while dealing with the judiciary the SRC recommended that at least one third of the number of judges in a High Court should consist of persons recruited from outside the State and in this connection observed as follows:
Guided by the consideration that the principal organs of State should be constituted as to inspire confidence and to help in arresting parochial trends, we would also recommend that at least one-third of the number of Judges in a High Court should consist of persons who are recruited from outside that State, In making appointments to a High Court bench, professional standing and ability must obviously be the overriding considerations. But the suggestion we have made will extend the field of choice and will have the advantage of regulating the staffing of the higher judiciary as far as possible on the same principles as in the case of the Civil Service.” And at page 263 in para 58 the SRC reiterated the policy indicated in para 861 extracted above. The SRC consisted of a very eminent Judge of the Supreme Court and two persons of very great public and political eminence like Shri K.M. Panikkar and Shri H.N. Kunzru. When the Commission was appointed Shri Saiyid Fazal Ali was Governor of Orissa, Shri H.N. Kunzru was a Member of the Council of States and Sri Panikkar was Ambassador of India in Egypt. Shri Saiyid Fazl Ali was the Chairman of the SRC. Thus, the ideas coming as they did from such great and important personalities who had varied experience not only in all branches of the law but also in other socio-economic activities is undoubtedly entitled to great weight. The SRC tried to face some hard facts and prophetically foresaw what has now come to be a stark reality and the need to crush the fissiparous and parochial tendencies which may lead to the disintegration of the country is felt much more today than ever before. The concluding words of the Report light up the entire history, apprehension and views of the SRC. If the need to achieve unity in all spheres of activities, judiciary not excluded, is not only in public interest but also in national interest, we fail to see what else could be in public interest.
352. Perhaps it was due to the terse observations, recommendations and suggestions of the SRC that a high-powered Law Commission was set up by the Government in 1958 which was headed by Mr. M.C. Setalvad, ex-Attorney General of India, and this high-powered Commission fully endorsed the SRC Report and even suggested a mechanism to implement the recommendations.
353. It is true that at that time -he idea of having Judges or CJs from outside the State had not been suggested or conceived though, as pointed out above, Dr. Ambedkar had hinted at even during the formative process of Article 222. This now brings us to the 14th Report of the Law Commission headed by Mr. Setalvad, where for the first time the policy having a CJ in every High Court from outside was not only suggested but supported by a large body of independent persons. Dwelling on this aspect of the matter the Law Commission in its 14th Report at page 76 (Para 26) observed thus:
26. A large body of evidence before us has suggested, that it should be made an invariable practice to fill a vacancy in the office of Chief Justice by appointing a Judge from outside the State. Such course, it is said, will have the advantage of giving the Chief Justice of India a wide choice in recommending a person suitable for that office. It has also been pressed upon us that bringing a Chief Justice from outside the State will have a very healthy influence, in that, it will promote a sense of unity in the country and prevent the Chief Justice being swayed by local connections and local influences. It may be mentioned that Chief Justices from outside the State have been appointed in some of the States and these appointments have proved a success. Though the analogy may not be very pertinent, we may refer to the practice of appointing Governors who do not belong to the State, which has been in vogue since the advent of the Constitution.
354. The observations referred to above clearly show that as far back as 1958 there was a strong view in favour of filling up the vacancies of CJs by appointing a Judge from outside the State. Although the Law Commission did not entirely agree with this opinion but it did notice that there was sufficient evidence to justify the same. As regards the other limb of the Policy to appoint one-third Judges in each High Court from outside the State, the Law Commission fully endorsed it and its recommendations on this subject may be extracted thus:
74…The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these States. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one-third of the High Court Judges would be persons drawn from outside the state will be realized.
355. In September 1963 a Study Team was appointed by the Administrative Reforms Commission (hereinafter referred to as ‘ARC Study Team’) to give its report on center-State relations. The laid study Team in its Report at p. 190 (paras 13-20) suggested that so far as practicable one-third of the number of Judges of the High Court should be from outside. In other words, the ARC Study Team also endorsed the SRC Report and the 14th Report of the Law Commission.
356. Immediately following the ARC Study Team Report, a meeting of the Committee of Zonal Council for National Integration was held on 31st August 1964 and in its Report on item 1 (viii)(b) the said Committee made the following recommendations.
The Committee also commended the idea that as convention, the Chief Justice of the High Court of a State should be a person from outside the State.
357. It would appear that the said Committee gave full effect to the large body of public opinion which had expressed its intention before the Law Commission (14th Report) that in every High Court the Chief Justice should be from outside the State, and the Committee fully endorsed this view. Thus, the inescapable conclusion seems to be that right from 1954 up to 1964, the two limbs of the Policy referred to above were being debated and ultimately definite views were expressed by independent persons that a policy, consisting of the two limbs, be evolved and followed.
358. In 1967 the ARC Study Team headed by Mr. M.C. Setalvad, passed a clear Resolution that as far as practicable, one-third of the number of judges should be from outside.
359. Another Law Commission was set up some time in 1978 and the Bar Council of India in its reply dated 8-9-1979 to questions Nos. 11 and 12 answered thus:
Question Answer 11. What is your view with regard Yes to the suggestion that we should more frequently appoint a Judge from outside the State as Chief Justice of the High Court. 12. What is your view with regard Yes to the suggestion that we should have a convention according to which one-third of the Judges in each High Court should be from another State.
360. In his speech on 26-2-1979 is the Lok Sabha Debates, Mr. P. Shiv Shanker, who was then a Member of Parliament only and not even in the then Ruling Party, expressed his opinion thus:
Various reports of the Law Commission with reference to recruitment policy and the policy on transfer of Judges from one High Court to the other have been only gathering dust. While I am one among those persons who will fight till the last for the independence of Judiciary, I would say that the policy as to the transfer of Judges as enunciated by the Law Commission in the year 1958, under the chairmanship of late Shri Setalvad, of which one of our very eminent members of the profession, viz., Shri Palkhivala was also a member, was salutary which opined that one-third of the Judges of a High Court must be from outside. This would have achieved a better national integration in the field of Judiciary. I am not one of those people who would support transfer if it is based on extraneous considerations. (Lok Sabha Debates: Vol XXII No. 6, Sixth Series–Seventh session)
361. In a meeting of the Consultative Committee for the Law Ministry, held on 7-6-1980, where Members of Parliament belonging to opposition parties were also present, the unanimous view was:
(2) the Chief Justice of a High Court should be from outside the State, and (3) at least one-third of the Judges in a High Court should be appointed from outside the State.
362. Another meeting of the Consultative Committee for the Ministry of Law held on 24-7-1980 fully reiterated and affirmed the view taken by the earlier Committee mentioned above.
363. Another meeting of the Consultative Committee held on 17-12-1980 which consisted of Members of Parliament of the opposition parties including Bapusaheb Parulekar, also favoured outside appointments.
364. In its 80th Report, the Law Commission headed by an eminent Judge of this Court, Mr. Justice H.R, Khanna, in paras 6.21 and 6.22 made the following observations:
6.21…Likewise, the Study Team on center-State Relation appointed by the Administrative Reforms Commission also suggested that so far as practicable one-third of the number of judges of a High Court should be from outside.
We have given the matter our earnest consideration and are in substantial agreement with the recommendations mentioned above. In our opinion, there should be a convention, according to which one-third of judges in each High Court should be from another State. This would normally have to be done through the process of initial appointments, and not by transfer. It would also in the very nature of things be a slow and gradual process and take some years before we reach the proportion.
6.22 Evolving such a convention would, in our opinion, not only help in the process of national integration but would also improve the functioning of various High Courts. It would secure on the Bench of each High Court the presence of a number of judges who would not be swayed by local considerations or affected by issues which may rouse local passion and emotions… We in India are in the fortunate position of having a vast country. There can, therefore, be no difficulty in having a certain percentage of judges who hail from other States. The advantages gained by having persons from other States as judges would be much greater compared with any disadvantage which might result therefrom.
365. A national Seminar was held on judicial appointment between 17-19 October 1980 at Ahmedabad, in which various eminent speakers participated and freely expressed their views. The Seminar was organised by the Bar Council of India Trust and its deliberations may be extracted thus:
The Seminar was of the view that the principle of transfer of Judges in all circumstances is not to be considered as violative of independence of judiciary. In fact, in certain situations transfer of a judge may be a very desirable course to follow for preserving independence of the judiciary, promoting national integration and avoiding balkanisation of the country on linguistic or other similar considerations.
The ideal of having one-third of High Court Judges from outside the State helps promotion of national integration and the preservation of a unified judicial system. However, it is desirable that this composition of the High Court should be accomplished by way of initial appointments rather than by transfers.
366. Thus, the preponderance of opinion in the Seminar favoured the dominant aspects of the policy, viz., principle of transfer of Judges and that one-third judges should be from outside the State, in order to promote national integration and preservation of a unified Judicial system.
367. Another meeting of the Consultative Committee of Members of Parliament for the Law Ministry was held on 3-9-81, in which Members belonging to the opposition parties were also present, and there also the preponderance which emerged was in favour of having CJs from outside the State and one-third of judges to be recruited in each High court from outside. In this connection, it may be useful to extract certain relevant portions from the speeches of the Members. Shri Nanda (Congress (S)) observed thus:
Participating in the discussion, Shri Nanda Congress (S) made particular reference to the Seminar organised, by the Bar Council of India at Ahmedabad and the discussions held there on the issue of transfer of Judges and appointments from outside. He wanted to know Government’s reaction to the various proposals made at the Conference on this aspect. He emphasized that on the question of appointments of outsiders and transfers, the Consultative Committee had made definite and positive recommendations and Government should implement them…
(Emphasis ours) 367A. Shri S.C. Mohanta (LD) expressed his views thus:
Shri S.C. Mohanta (LD) said that initially he had reservation about supporting the policy of transfers but ever since the Law Minister had said that he would leave the mechanism and modalities to the Supreme Court, he was convinced that such a policy should be followed and pressed that those who were newly appointed, should be transferred to outside courts. There could be no status quo approach in the present times. A suitable mechanism should be evolved and implementation left to the judiciary.
367B. Shri Jamil-ur-Eahman (Congress) observed thus:
It would be in the national interest to transfer Judges from one High Court to other, and there should be no hesitation in doing this.
368. Shri Dandapani (DMK) supported the view and observed thus: Shri Dandapani (DMK) supported the view that judges should be transferred from the High Courts in their own interest to other High Courts. He was of the view that in many cases, judges continuing in the High Courts of their own State were likely to develop vested interests… Fresh appointments could certainly be made from outside the State. This should be done as a matter of policy so that there was no pick and choose.
369. Shri Hari Nath Mishra (Congress) was of the following view:
Shri Hari Nath Mishra (Congresa) mentioned that it had been agreed at earlier meetings that one-third of the judges and the Chief Justice should be from outside the State. The need for such a policy arose not from any theoretical consideration but from the reality of the situation. He wished to project this need to the Law Minister and through the Law Minister to the Chief Justice of India.
370. Shri Bhogendra Jha (CPI) observed thus:
Shri Bhogendra Jha (CPI) supported the idea of transferring judges of High Courts outside their own State…. He also observed that while members of the Committee belonging to the different parties had agreed that transfer and appointments of outsiders should be made, the idea should be propagated amongst the respective parties.
(Emphasis supplied)
371. The Law Minister presiding over the deliberations of the Consultative Committee pointed out that the delay in evolving a policy was due to the fact that he was ascertaining the views of the Chief Justice of India but a final decision was yet to be taken. In this connection, he observed thus:
The Law Minister mentioned that he had sought the views of the Chief Justice of India on the policy of having Chief Justices from outride, as that by itself would considerably improve the functioning of the High Courts. He apprised the members of the approach of the Chief Justice of India in the matter of transfers and appointments of outsiders, A final decision in the matter of a policy of transfers was still to be taken.
372. So far as the CJI is concerned, he was firmly opposed to the wholesale transfers of all CJs from one High Court to another without objective reasons though selective transfer could be made in appropriate cases for objective reasons. On 18-3-1981, the CJI observed that at least a few of the new appointments to every High Court were in fact made from outside the State. In April 1981 he opined that at least one-third of the new appointments to the High Court should be made from outside.
373. So far as the second limb of the Policy is concerned, viz., that each High Court should have one-third of is strength of Judges from outside the State, the CJI clearly concurred with this view but his main grievance seems to have been against the wholesale transfers of CJs so that each High Court had a CJ from outside. According to the CJI, such a policy was fraught with grave consequences and serious inconvenience which may be caused to most of the CJs. In spite of the stand taken by the CJI the Law Minister on behalf of the Central Government, tried his best to persuade him (CJI) to agree to a uniform policy of transfer of CJs–a policy which had found favour with eminent jurists, politicians, lawyers and parliamentarians, but the CJI seems to have posed stiff resistance to the aforesaid Policy.
374. The Law Minister participating in the discussions in the Rajya Sabhaon 30-7-80 on the question of transfer of CJs from one High Court to another spoke thus:
Mr. Chagla and Mr. Palkhivala–they supported the approach that one-third of the Judges should be from outside so that it would be in the interest of national integration; regionalism will not come in, and also it would be in the interest of a caste-ridden society. That was the approach they had taken.
I will go only into the recent past. Even my predecessor, Mr. Shanti Bhushan felt that a Chief Justice should be from outside on the same grounds which were urged by the Law Commission in its 14th Report…The policy is whether a Chief Justice should be from out-side or not, and if so, whether the seniormost person based on the all-India seniority should be appointed wherever the vacancies occur, or any other mechanism has to be evolved which should be in the best interest at the society… This very Bar Council–except one or two members who have changed; otherwise, the personnel are the same –said: “Yes, the policy should be that the Chief Justice should be from outside.” The other question that was posed by the Law Commission was question No. 12 which said: “What is your view with regard to the suggestion that we should have a convention according to which one-third of the Judges of each High Court should be from outside the State”? This very Bar Council answered in the affirmative.
(Rajya Sabha Debates: Vol. CXV No. 6 dt. 30-7-80, pp. 219-221)
375. In his speech, the Law Minister also said a few things about the manner In which the mechanism to give effect to the policy may be devised. In a later speech on 24-7-1980 in the Lok Sabha while dealing with the question of mechanism for giving effect to the policy, the Law Minister observed as follows:
Mr. Deputy Speaker, Sir, on the first question of mechanism I must frankly bring to the notice of this Hon. House that even my predecessor Shri Shanti Bhushanji seems to be of the view that a Chief Justice should be from out side because of the various factOrs. And I am glad that the Hon. Member, Shri Agarwal, did support this approach. A I said we have not finally come to a conclusion…The matter of mechanism is an affair where we have to necessarily seek the guidance of the Supreme Court. And in this matter I can assure you that as and when we come to a final conclusion, we will see to it that the least injustice is done to the persons concerned. I am at the disposal of the Supreme Court to suggest any mechanism which they feel would be suitable in the interest of the independence of the judiciary.
I am prepared to leave everything to the Supreme Court to decide the mechanism of the whole approach.
(Emphasis ours)
376. In order, however, to be fair to the CJI for having expressed a strong view against the proposal for giving effect to a uniform policy of transfer of CJs, it may be necessary to go through the various letters exchanged between the CJI and the Law Minister to know the reasons and the circumstances under which the CJI had voiced his opposition.
377. To begin with, in a Note dated 15-5-80 (which is contained in one of the files disclosed under the majority Order of this Court), the Law Minister once more wanted to ascertain the final view of the CJI thus:
While this file may be referred to the CJI for his advice, I feel that we should also examine about evolving the policy to appoint the Chief Justice of a High Court from the High Court other than the High Court to which the Chief Justice is to be appointed. I had passingly discussed this issue some time back with the C.J.I. The fact remains that in the various High Courts the problems of caste and regionalism, etc., are looming large.
378. In reply to this, the CJI drew the attention of the Law Minister to the following facts which may be extracted thus:
It would become necessary in the very near future to evolve an All India policy for appointments of Chief Justices in the various High Courts, The difficulties in taking any ad hoc decision on that question are of such grave magnitude that it would be impossible at this stage to appoint an outsider as a Chief Justice either of the Delhi High Court or of the Andhra Pradesh High Court.
379. It would appear from the contents of the Note extracted above that the CJI was opposed only against any ad hoc decisions without evolving an All-India policy for appointment of CJs-He had deliberately remained silent on the question of the Policy regarding transfer of CJs.
380. In his minute dt. 31-7-80 while expressing his opposition to the uniform policy the GJI clearly stated that he had an open mind, the relevant, portion may be extracted thus:
The heart of the matter however is whether, as a general All India policy a Judge of a High Court ought never to be appointed as the Chief Justice of that High Court. I am prepared to keep an open mind on this question because the pros and cons of the issue has still to be thrashed out. But the better view may be that transfers of sitting Chief Justices may be made only in appropriate cases, that is to say, when a strong case for the transfer has been made out.
At this stage it is unnecessary to say anything more on the subject except to clarify that though I recognise the need to evolve an All India policy for appointments, of Chief Justices in the various High Courts, I do not think that it will , be either feasible or proper to transfer each and every sitting Chief Justice of the High Court to another High Court, or to appoint an outside Judge as the Chief Justice whenever a vacancy of a Chief Justice arises.
(Emphasis supplied)
381. It appears that the CJI himself appears to be in two minds–whether or not to accept the uniform policy–and was weighing the merits and demerits in the balanced scales of justice. Ultimately, it seems that he appears to have finally made up his mind to oppose the policy of wholesale transfer of CJs. This would be clear from his letter dated 7-12-80 addressed td the Law Minister where he had expressed his opinion fairly, frankly and without any reservation thus:
Though I am firmly opposed to a wholesale transfer of the Chief Justices of High Courts, 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. Personal considerations must, in the matter of such transfers, be wholly kept out.
382. This, therefore, marks the end of the epoch so far as the CJI was concerned. After examining the entire history of the case, the various opinions expressed by top legal luminaries, statesmen, politicians and jurists right from 1958 to 1981, we are absolutely convinced that the idea of the Central Government of a uniform policy of transfer of CJs, so that each State has a CJ from outside, is a very essential, useful, sensible and a wise one which cuts at the roots of so many evils with which not only our country but even the higher judiciary is faced. Some of these aspects have been dealt with by the Law Minister and other legal luminaries in the various extracts quoted above.
383. Secondly, such a uniform policy will be in the better interest of the concerned Judge himself because however disinterested or independent he may be, he is bound to be influenced either consciously or unconsciously by Interested persons who choose to exploit him even without his knowledge. A clear instance of this is to be found in the case of Justice K.B.N. Singh which has been fully clarified by the CJI in his counter-affidavit in Transferred Case No. 24 of 1981. As, however, this is a very sensitive matter we would not like to go into the details or comparative merit or demerit of the Policy but by and large we are absolutely confident that such a policy would enhance the prestige of the judiciary, ensure its Independence and make the working of the head of the judiciary in the State more efficient and generate a greater confidence in the people of the new State where he is transferred.
384. The only objection which has been pointed out against this Policy is the language problem but that also does not appear to be an insurmountable obstacle because white laying down the policy the Government can start with transfers of CJs within the Zones as recommended by the Law Commission which will minimise the language difficulty. In making the transfers, there would be no serious objection if the CJ is allowed to indicate his choice regarding the State where he would be prepared to be transferred and the same may be accepted as far as practicable. So far as recruitment of one-third Judges at the initial stage is concerned, this will no doubt present some diff-cullies in the beginning because several constitutional authorities would have to be consulted but this difficulty can be overcome either by the appropriate method adopted by the Circular or any mechanism similar to the same, We would like to suggest that the Chief Justice of each High Court should be asked to prepare a panel of suitable persons who are considered for appoint merit as High Court Judges both from the Bar and from the subordinate judiciary, Before including the name of the persons concerned their previous consent for being appointed outside the State may be obtained by the CJ. This can be done by determining the strength of the panel so that it may form one-third of the total strength of permanent Judges already fixed by the President or as may be fixed from time to time. The Civil List of Judges of the Supreme Court and High Courts gives the sanctioned strength of permanent and Additional Judges. One-third of the strength of the permanent Judges according to the vacancies that fall should be reserved for the persons found suitable and who are willing to serve outside the State. It would be better If the persons whose names are included in the panel are appointed outside the State as permanent Judges which would provide an attractive offer and give a better impetus to the persons aspiring for judgeship and would tempt them to serve outside the State.
385. This procedure should be continued without any break through a phased programme and the ultimate result would be that after a few years, the outside Judges in each High Court will pick up their seniority and would become eligible for being appointed as CJ of the High Court in which they were appointed. Thus, after the retirement Of the present CJs or the transferee CJs a time may come when automatically every High Court will have a CJ from outside because the seniormost Judge who was initially recruited from outside would, if found suitable in all respects, be appointed Chief Justice of the said High Court, Such a scheme would be a continuous Implementation of the Policy.
386. Moreover, once the Government takes a final decision considering the diverse views expressed by politicians, jurists, lawyers, parliamentarians and respectable citizens, in respect of having a uniform policy by which every CJ should be from outside the State, the Government can lay down such a policy by Presidential order. If that is done, there would be no just or lawful cause for the CJI to withhold his consent to implement such a uniform policy because once a policy is evolved and given effect to, the idea of making selective transfers would lose its significance and value and would perhaps be violative of Article 14 of the Constitution because selective transfers would always result in some sort of discrimination, for in each case, the CJI would have to justify the classification made by him.
387. It is true that neither the Law Commission set up in 1958 nor the one set up in 1978 had totally agreed with the first limb of the policy, i.e. transfer of CJs from one State to another so that each State has a CJ from outside although they did find in unequivocal terms that there was a sufficiently vocal section of the public favouring such a policy of transfers. This was perhaps because by that tune all the various shades and aspects, mechanisms, and methods of evolving such a policy had not been fully explored nor did the State policy till that time ripen into a wholesome policy after having considered the various facets of the matter with frankness, forthrightness and objectivity.
388. Indeed what had been noticed by the Law Commission in 1958, that is about more than two decades hence, has become absolutely essential today in view of the modern trends of casteism, nepotism and patronage in the higher echelons of judiciary. Furthermore, as a result of the insufficient emoluments and poor conditions of service, we are not able to muster men of high calibre and eminence for appointment to the High Courts. With great reluctance we have to observe that an atmosphere seems to prevail today in most of the High Courts Judges are being exploited and in some cases perhaps without their knowledge, which has brought the most sacred and sacrosanct institution of the judiciary into serious disrepute. The only honourable remedy for this malady is the implementation of the first limb of the Policy,
389. Nevertheless, regarding the second limb of the Policy in regard to recruitment of one-third Judges from outside the State, as far as possible at the initial stage; both the Commissions have unanimously acclaimed and approved such a step.
390. Brother Venkataramiah has taken the view that although the CJI was opposed to the wholesale transfers of all CJs, his opposition was only with respect to all these transfers being made at a particular time. In other words, Venkataramiah J., suggests that the CJI was quite agreeable to the Policy being carried out if the CJs are transferred not in a block but by stages and in due course of time. We are, however, unable to agree with this argument because this runs counter to the clear intention expressed by the CJI in the letters discussed above. Moreover; it will be rather unfair to the CJI also to say that he had merely opposed wholesale transfers made at one time but had agreed to the Policy of uniform transfers if made by stages. The view taken by the CJI may not appeal to us or perhaps to the majority of the jurists but it cannot be said that there is absolutely no substance in the stand taken by the CJI His point of view is also quite understandable but, with greatest respect to him, what he has missed is the great public interest, the policy subserves by promoting national integration and curbing fissiparous tendencies that have started raising their heads and completely excludes discrimination which may result in cases of selective transfers]
391. Brother Venkataramiah has also expressed his view that the transfers proposed by the CJI, which were quite a number of them, were actually in aid and implementation of the policy formulated by the Government and, therefore, even if there was no effective consultation, the transfers would be valid. We regret that we are unable to “accept this view because it is the* common case of all the parties that although the suggestion to evolve a Policy ha” been mooted no such Policy has yet been evolved or finalised because even according to the Law Minister, the mechanism is yet to be determined which would have to be left to the Supreme Court. This is further supported by the statements of the Law Minister which was produced by the Solicitor-General where the Law Minister merely says that the Policy view was put across to the CJI who expressed his opposition to all the CJs of the High Courts being from outside. The Government, however, acceded to the transfers proposed by the CJI as (1) it was felt that not agreeing to these transfers may be construed as though the Government was departing from Us view of having CJs from outside, and (2) the policy aspect could still be pressed into service later.
392. Thus the statement of the Law Minister clinches the issue and establishes the fact beyond doubt that no uniform Policy has so far been evolved and the said Policy, if any, is still an the making. This being so, the question of the CJI proceeding to implement the Policy by proposing the transfers would not arise.
393. On other points, we entirely agree with Brother Venkataramiah and other Brother Judges that the Policy is good, reasonable, fruitful and constitutionally valid.
394. Thus, a close and careful scrutiny of the correspondence between the Law Minister and the CJI over a year on the issue of evolving a general policy of transfer of CJs so that each State has a CJ from outside could not be finalised and what happened was that only sporadic transfers were recommended by the CJI. As indicated above Brother Venkataramiah has in his lucid judgment seems to have construed the letter dated 7-12-1980 of the CJI to indicate merely that he was against wholesale transfers to be made at one stroke and what he suggested was that these transfers should be made in stages and not on a single day. In other words, Venkataramiah, J., is of the view that the transfers “recommended in the CJI’s letters dated 7-12-1980 and 20-12-1980 were merely in implementation of the general policy of transfer of CJs so that every High Court has a CJ from outside. With due respect, we are unable to spell out such an intention of the CJI from the clear contents of the letters which in fact and in purpose rejects the general policy of wholesale transfers of the CJs as suggested by the Law Minister, He has ultimately expressed himself very clearly and strongly that he was against such a universal policy of wholesale transfers and would be willing only to consider individual cases on their merits leaving apart, personal considerations and for objective reasons.
395. Secondly, since it is the admitted case of the Government that while they were thinking of evolving a general policy of transfer of CJs, the policy had not yet taken any final shape nor did the Government take any conclusive decision on this important matter. With due respect, therefore, we do not agree with the view taken by Brother Venkataramiah J. on this point,
396. As regards the Government’s idea of evolving a general policy to effect transfers of CJs in a manner which puts every High Court under the CJ from outside the State, is undoubtedly a very sound and acceptable policy as found by us. We have pointed out from the various Reports discussed above that ever since the date of the Report of the SRC was given the idea of having Judges from outside the State was clearly mooted. Furthermore, while we are examining the Policy sought to be evolved by the Government, at the present moment we cannot shut our eyes to the stark and hard realities of life. Ever since the linguistic provinces came into existence as a result of the SRC Report, attempts have been made to see that the linguistic division of the State does not create disintegration of our big country which is the largest democracy in the world. In fact, lawyers, Judges, politicians, jurists, members of the Bar and other statesmen have applied their minds and expressed themselves strongly in favour of the policy sought to be evolved by the Government. In view, however, of the changed circumstances, in our opinion, such a policy is not only proper but essential as being the prime need of the hour. We cannot but take notice of the fissiparous and parochial tendencies that have started raising their heads threatening disintegration of the country. The dark clouds of separatism, conservatism and parochialism have started casting their shadows on the entire country and it is high time that such a sacred and sacrosanct institution like the High Courts should be protected and kept aloof from such evil forces. It is manifest that a CJ from outside will apply an independent approach both in discharging his judicial duties as a Judge and in recommending appointment of members of the Bar or service to the High Court and his selection will not be inspired or tainted by any local or personal consideration because he would be an outsider in the High Court of a State where he presides. Further, even the litigant would have much greater confidence in such a CJ than in a local person,
397. We would like to reiterate at the risk of repetition that having regard to the inadequate emoluments of the. High Court Judges and their conditions of service which leave much to be desired, there has been a fall in the standards of efficiency and competency! Lawyers possessing great calibre and eminence are extremely reluctant to accept judgeship of a High Court. Thus, the choice and selection of suitable persons has become extremely difficult and experience has shown that in a number of High Courts suitable persons have not been appointed.
398. It has been vehemently argued by Mr. Seervai as also by Mr. Sorabjee who followed him that their main concern is that independence of judiciary should be maintained at all costs. Indeed, if they are really concerned that we should build up an independent judiciary then it is absolutely essential that new talents from outside should be imported in every High Court either to man it or to head it so that they may generate much greater confidence in the people than the local Judges. The position of a CJ is indeed a very high constitutional position and Our Constitution contains sufficient safeguards to protect both his decision making process and his tenure. It is a well-known saying that power corrupts and absolute power corrupts absolutely. As man is not infallible, so is a Chief Justice, though a person holding a high judicial post is likely to be incorruptible because of the quality of sobriety and restraint that the judicial method contains. Even so, if a CJ is from outside the State, the chances of his misusing his powers are reduced to the absolute minimum. We have pointed out that the power to formulate or evolve this policy dearly lies within the four corners of Article 222 itself which contains a very wide power conditioned only By consultation with CJI who is the highest judicial authority in the country. It is always open to the President, which in practice means the Central Government, to lay down a policy, norms and guidelines according to which the Presidential powers are to be exercised and once these norms are followed, the powers of the President would be beyond judicial review.
399. We might also mention that as against policy transfer selective transfers of CJs to High Courts other than the one where they are working or may be appointed, contains the colour of discrimination and arbitrariness because however careful the CJI may be if he starts picking and choosing CJs from outside the High Courts the element of discrimination or arbitrariness cannot be reasonably excluded. On the other hand, if a general policy applying to all and sundry (CJs) is evolved by which State would have a CJ from outside no complaint of discrimination can ever be made. In fact, the very foundation of discrimination would disappear. The view taken by the CJI, with greatest respect to him, does not appear to be correct or acceptable and perhaps in his own interest selective transfers should not be made because even if. in one or two cases discrimination is made due to oversight or bona fide lapse, it will amount to a great slur on such a nigh position as the CJI holds. On the other hand, if a uniform policy of appointing or promoting CJs to High Courts outside the State is followed it will promote national integration and curb the fissiparous and parochial tendencies and preserve and protect the purity of judicial administration. We cannot conceive of any better policy which would be in greater public interest than the policy of having CJs in every State from outside. We have already observed that whenever a general policy or radical change of this kind is made it has to be subject to just exceptions and the formulation of such a policy would also have to take within its fold exceptional circumstances applicable to a particular CJ or CJs –a matter which we shall discuss here-after.
400. Even as regards the constitutional validity of the general policy which may be evolved by the Centra Government. This Court in Seth’s case had clearly expressed the view that such a Policy would be in public interest. In this connection, Chandrachud J., (as he then was) speaking for the majority judgment observed as follows (at pp. 2344, 2347 of AIR 1977 SC):
As regards the first, no one can deny that whatever measures are required to be taken in order to achieve national integration would be in public interest. Whether it is necessary to transfer Judges from one High Court to another in the interests of national integration is a moot point. But that is a policy matter with which courts are not concerned directly.
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 outside the contemplation of our Constitution.
401. Doubtless, there appears to be some apparent contradiction between the two passages extracted above from the judgment of Chandrachud J. On a closer scrutiny of these observations his view that policy transfers on wholesale basis would leave no scope for considering facts of each particular case cannot be read out of the context and have to be read in the light of the peculiar facts and circumstances of Seth’s case in which transfers were made by the Government not in pursuance of a policy or public interest but purely with political motives to punish Judges for sharing a particular ideology. This is, however, not the case here and therefore as we read the observations of Chandrachud J. he has not held the policy of transfer to be not In public interest in order to promote national integration.
402. For the reasons that we have Already given above, we are unable to agree with the observations where the learned Judge has said that interest of national integration is a moot point. We have already shown from the opinions expressed by high constitutional and legal authorities that a policy of having CJ in every High Court from outside to in great national interest and perhaps very necessary in order to curb and crush the fissiparous tendencies which seem to sway our entire country. Bhagwati, J. while adverting to this aspect Of the case observed as follows :
It was admittedly part of mass transfers of 16 High Court Judges and though a suggestion was made by the Government of India in its affidavit in reply that the transfers were made with a view to strengthening national integration but cutting at the barriers of regionalism and parochialism; the Government of India did not choose to disclose the principle on which these 16 High Court Judges were picked out for being transferred.
403. These observations show that Bhagwati, J., did not dispute the correctness of the Policy of National integration but found fault with the manner in which it was applied by justifying the transfers on a ground which was not supportable in law. It is obvious that if the transfers would have been made to strengthen national integration n order to cut the barriers of regionalism and parochialism, the Judge would have no hesitation in upholding the State Policy. Krishna Iyer, J, and one of us (Fazal All J.) also sounded a similar note and observed ,thus :
But to promote the community’s concern for impeccable litigative justice policy-oriented transfer of Judges after compliance with constitutionally spelt-out protocols may not be ruled out.
… … …
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 per viciousness were all in the calculations of the framers of the Constitution.
404. Even Untwalia J. who has dissented from the majority judgment had admitted that the purpose of national integration was a good thing to be achieved and in this connection observed thus :
The purpose of national integration if otherwise it is a good thing to be achieved…
405. Thus, it would appear that even the judicial pronouncements of this Court in Seth’s case extracted above fully favour the formulation of such a policy. Added to this the commitment made by the Law Minister that once the Policy of wholesale transfers of CJ is evolved the mechanism would be left to the Supreme Court and the Policy be started from the grass-root level by taking consent of the persons nominated for appointment of Additional Judges who have not yet been made permanent, the policy can be fully worked out without any hitch or hindrance.
406. The next question that arises for consideration is as to how the two limbs of the Policy, viz., (1) transfer of CJs from outside, and (2) recruitment of one third of Judges from outside the State at the initial level, can be effectuated. Here, we do not find any difficulty whatsoever. Article 222 confers an express power on the President to transfer a Judge (which includes the CJ) from one State to another. This power is not circumscribed or hedged by any conditions or stipulations excepting that the CJI has to be consulted. In determining as to how this power can be exercised, the President undoubtedly possesses an implied power to lay down the norms, the principles, the conditions and the circumstances under which the said power is to be exercised so long as he does not overstep the limits or confines of the power enshrined under Article 222. Since the implied power lies with the President it is not at all necessary that this power should be regulated by a legislation or an Act or a Rule or a bye-law or any other instruction. A declaration by the President regarding the nature and terms of the policy which virtually means declaration by the Council of Ministers is quite sufficient and absolutely legal and constitutional to effectuate the policy decided upon.
407. Secondly, as the policy is a general one which applies to all and sundry without any discrimination or selections, it cannot be violative of Article 14 of the Constitution because the policy will operate equally on all the Judges of the CJs without any difference or distinction,
408. Thirdly, it is necessary to put the policy beyond the charge of unreasonableness or arbitrariness that the State policy must be subject to just exceptions which may be very few, so that the exceptions do not become a rule or a ruse to destroy the effect of the main policy itself. For instance, while evolving or formulating a general policy the following exceptions can be made by the President–
(1) that where the personal circumstances of a Judge, purely on humanitarian grounds, are such as may endanger his life, e.g., he may be a heart patient and so he may not be transferred to a High Court which is situated in a hill station or at a particular height or he may be suffering from such disease which may imperil him there or such other circumstance of a very compelling or pressing nature, (2) where the Judge or the CJ concerned is about to retire and is to serve only for a very short term before retirement, his transfer to some other Court would not serve any useful purpose and would be very inconvenient to him–such a period may vary from one day to six months but not more, (3) where due to some physical infirmity the CJ concerned has become immobile and cannot be moved beyond his home State, this may be a just and humanitarian ground for bringing him under the exceptions to the policy, and (4) such other circumstances, either similar to or identical with the circumstances mentioned above, which in the opinion of the CJI or the President requires due consideration on humanitarian grounds.
409. It is manifest that even if a Policy has been finally evolved and formulated and transfers are sought to be made in pursuance of the policy, the President has to consult the CJI or where the CJI initiates the proposal he is to consult the Judge concerned as also the President but the process of consultation would have to be confined to the four corners of the just exceptions indicated above and not beyond the same which form part of the Policy laid down by the President.
410. At the same time, the exceptions should not be so broadly construed as to destroy the effect and fruitfulness of the Policy.
411. Another aspect of the matter is as to whether or not the policy is legally justifiable and is in public interest so as to be legal and constitutional. On this aspect of the matter unimpeachable materials have been placed before us to show that right from the framing of the Constitution up-to-date public opinion has always favoured the transfer of Judges as a matter of uniform policy. As late as 1949 when the Draft Constitution was made, Dr. Ambedkar, as already indicated, had expressed a pious wish that Judges should be transferred to other States so that they can apply an independent approach and generate more confidence being above all local or parochial interests.
412. We must hasten to add that The President before formulating the Policy should consult the CJI and have his views because the laying down of the Policy would be under Article 222 and consultation with the CJI being necessary concomitant of the said power, even while laying down the Policy, the consultative process is essential. Although the CJI has at present shown his stiff opposition to the Policy we hope and trust that when the matter is reassessed and a Policy is finally formulated, the CJI would eschew his opposition in view of the various factors and circumstances indicated above as also in due deference to the view of some of the Judges of this Court who have decided these cases, which, as pointed out by us, is not only in great public interest but also in national interest of the country. Moreover, the Policy has been amply supported and sponsored not only by the Government but also by a very large body of public men including Jurists, politicians, lawyers, parliamentarians and others. If despite these circumstances the CJI does not change his view and sticks to his opposition of the Policy, then we think this will be a fit and proper case where the President might overrule the CJI and enforce the Policy. We However solemnly hope and trust that such an eventuality would not arise,
413. Before closing this Chapter, we would like to say a few words about the mechanism of giving effect to this Policy. The Law Minister has already made a statement in the Parliament as indicated above that he is prepared to leave the mechanism to be devised to the CJI or to the Supreme Court. If the Supreme Court, which represents cream of all legal and judicial master minds of 70 crores of the people of our country, is left to adopt the mechanism, viz., as to which CJ should be posted where and judge the suitability and the atmosphere of the place of posting, then we think that nobody can ever complain of any injustice or discrimination against the mechanism adopted by the Court. We might further state that only the mechanism is to be left to the Supreme Court which will require a small Constitutional amendment in Article 222 which uses the word CJI alone. For the time being the mechanism could be left to the CJI who, we hope and trust, will consult his colleagues before adopting the mechanism in each case.
414. Before closing this chapter we should now say a few words about the legal and constitutional effect of the Circular said to have been written by the Union Law Minister. In order to understand the real import of the said Circular, the same may be extracted in lull: “D. O. No. 66/10/81/-Jus Minister of Law, Justice & Company Affairs, India New Delhi-110001.
March 18, 1981.
My dear It has repeatedly been suggested to Government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to farther 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 peat in this direction The feeling is strong, growing and Justified that some effective steps should be taken very early in this direction.
2. (a) In this context, I would request you to 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 paragraph 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 parti 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 initiated very early by you and the written consent and preferences of all Additional Judges as well as of persons re-commended by you for initial appointment are sent to me within a fortnight of the receipt of this letter.
5. I am also pending a copy of this letter to the Chief Justice of your High Court.
With regards Yours Sincerely, Sd/-.
(P. Shivshankar) To:
1. Governor of Punjab.
2. Chief Ministers (by name) (except North-Eastern States)
415. In the first place, the contents of the letter have to be understood against the background of the uniform policy sought to be evolved by the President which we have dealt above exhaustively. Before we make any comments it seems to us that what was purely a useful and innocuous, meaningful and pointed document has been described by the petitioners as a most mischievous act of the Law Minister which endangers and erodes the independence, of the judiciary. In our opinion, with due respect to the counsel for the parties the Circular neither does nor does it intend to do any such thing.
416. To begin with the preamble of the Circular clearly gives the reasons and the background why the letter was written, viz., that the unanlmous view that has now emerged is that one-third of the Judges should as far as possible be from outside the State in which that High Court is; situated. From the elaborate discussions in respect of the various circumstances and documents to which we have referred while dealing ‘ with the question of Policy, it is manifest that nobody has ever objected to the second limb of the Policy, that is to say, taking one-third of the Judges in a High Court from outside the State. We have-shown that even the CJI has expressed -his entire agreement with this part of the Policy. The Circular merely seeks ‘to provide an easy and practical, rough and ready, and an ingenious and Scientific ‘mechanism’ to achieve this end.
417. Let us assume that all parties agree that one-third of the Judges in each High Court should be taken from outside,’ which seems to be the absolute consensus that has emerged from the evidence produced by both the parties. The question is how is this objective to be achieved? One method may be as suggested by-some Commissions that each High Court should maintain a panel of ‘members of, the Bar and the services who; are suitable for appointment as Judges of the High Court and exchange these panels, with the CJs of all High Courts Before making the panel, it is manifest that the State Government also would have to be consulted, which is also the, requirement of the statute. This is, however; a very complex and complicated .procedure and will take quite-;a- few years before the panel in formed’.
418. So far as Mr. Seervai is concerned, ‘ he ‘argued that this cannot be done, ^e lire; however, unable to agree with him that merely because it may not be ‘very ‘easy to evolve this limb of the Policy, ‘if should be rejected as being impossible of performance. After all, eminent Jurists like Justice Saiyid Fazl AU, Justice H.R, Khanna, Mr. M.C, Setalvad and let of others must be given the credit of possessing great knowledge of law and if they thought that this was an idea which was most impracticable, they would never have suggested it.
419. The Law Minister by virtue of the Circular seeks, to hit upon a device by Which this limb of the Policy can be achieved. It is obvious that in almost all the High Courts apart from the permanent Judges, Additional Judges are working according to the strength fixed by the President in each High Court, The Circular does not cover the permanent Judges of the High Court at all but it applies only to two kinds of Judges–(1) persona who are about to be appointed as Additional Judges, and (2) persons who are working as Additional Judges and whose term is likely to expire: The Circular merely says that the CJs may obtain the consent of the aforesaid additional Judges if they would like to be appointed as permanent Judges in any other High Court in the country and they could name three High Courts of their choice. There is no compulsion on the Judges to give their consent: it is merely an option or suggestion which they may or may not accept.
420. Secondly, consent is to be obtain-ed from persons who had already been or may in future be proposed for initial appointment as Additional Judges to give their consent to be appointed in any other High Court. Here also, there is no element of compulsion. Clause (3) of the Circular, which has been severely criticised by Mr. Seervai and those who followed him, merely says that furnishing of the consent or indication of the preference would not imply any commitment on the part of the Government. While criticising this part of the Circular the counsel for the petitioners have however completely overlooked the most important circumstance that it was impossible for the Government to have made any commitment without ascertaining the views of the State Governments concerned, the CJs as also the CJI. It could only be after these functionaries would have intimated their option that the ball could be set rolling and the CJs of the High Courts where they were proposed to be sent could be sounded for consultation as also the Government. Furthermore, the CJI would come into the picture only after the proposal has passed through the High Court and the State Government concerned and it would be open to the CJI at this stage either to agree with this proposal or to drop it.
421. We, therefore, fail to see what harm is done to the Judges. On the other hand, the Circular provides an additional facility to the Judges who may like to go out of the State in accordance with the Policy. It appears that in actual practice quite a few of the Judges have given their consent.
422. Mr. Seervai vehemently contend-ed that the tone and tenor of the Circular amounts to pressurising the Judges and putting them under coercion to give their consent at the peril of their being dropped at the initial stage. The plea of coercion or undue influence is to be pleaded by the persons on whom undue influence or coercion is used. None of the Judges have either by any statement or affidavit complained that they had given their consent under duress.
423. Mr. Seervai submitted that Judges are not used to indulge in litigation and if they chose to remain silent, the lawyers can take up their cause and prove that duress and coercion has been practised on them. We are really amazed that such an argument has been advanced before us which completely ignores the elementary norms of law. Manifestly before the highest Court, a Judge of a High Court cannot be governed by a law or rule of evidence different from the one which applies to all citizens. It is now well settled by several authorities that allegations of coercion Or undue influence must be expressly pleaded by the party who is the victim, and proved to the satisfaction of the Court.
424. In the instant case, there is neither any plea nor any proof by the so-balled victims. A mere statement in the petition that undue influence or coercion or duress was practised on the Judges is not sufficient for this Court to come to the conclusion that the consent of the Judges was obtained under duress or coercion. Mr. Seervai contended that although there was a clear indication in the petition, none of the Judges has come forward to deny the same. This is indeed a most unusual way of proving a case of fraud or undue influence. Suppose today we accept the argument of Mr. Seervai and hold that by virtue of the Circular the Judges who have given their consent did so under coercion or duress and tomorrow the very Judges who had given consent come forward to this Court protesting against our finding and inform us that they had voluntarily given their consent, what shall be the answer of this Court. On what principle of law or equity can we decide the plea of fraud, undue influence or coercion? This argument which is the sheet-anchor of Mr. Seervai, with due respect to him, cannot be accepted for a moment.
425. Another comment against the Circular was that by the indirect process of obtaining consent of the Judges concerned, the provisions of Article 222 have been rendered otiose because when the matter goes to the CJI, he would be faced with a fait accompli and would have no discretion in the matter. This argument also, in our opinion, is wholly untenable. A person of the status and calibre of the Head of the judiciary in India would not be worth his salt if he exercises his constitutional power of consultation merely on the consent of a Judge without at all applying his mind. There if no question of presenting a fait accompli to the CJI because he has to consider all the shades, aspects and problems of the matter in its entirety and would also have to consult the Judge concerned and if he feels that a proper case for transferring the Additional Judge to other High Court has not been made out, he can refuse to give his consent in which case in all probability the proposal would die a natural death. We are, therefore, unable to accede to the contention that the Circular tries to interfere with the supreme authority of the CJI in the matter of consultation under Article 222.
426. Another circumstance that furnishes a complete answer to this problem is that no question of transfer is involved in the mechanism sought to be devised by the Circular. The Additional Judges have only to be appointed for the first time in other High Courts and are not to be transferred. Even if the Judges concerned give their consent and are appointed in an outside High Court, they would not be transferee Judges and therefore not entitled to the facilities which are available to transferee Judges like compensatory allowance, visiting his home State every year, etc. Therefore, the entire argument stands on a pack of cards.
427. Lastly, the Circular issued by the Law Minister is not mandatory but purely directory. It is open to the Judges to refuse to answer the queries made from them by the CJI in pursuance of the Circular and no adverse inference can be taken against them, though the law will take its own course.
428. We are clearly of the opinion that once the Policy is finally formulated and translated into action, it would enhance the image and independence of the judicial institutions and verily the judiciary would see its halcyon days where the Judges would be able to function with drive and dedication in a free and independent atmosphere without the fear of any local or parochial influence entering into their verdict either consciously or unconsciously. The grateful nation shall pay its homage to our grate Founding Fathers for giving unto this country a most ideal, flexible, sound and solid Constitution which has sustained the largest democracy in the world and has stood the test of times despite severe storms and crises like an impregnable rock.
429. For these reasons, therefore, we are unable to agree with the counsel for the petitioners that the Circular in any way tarnishes the image of the Judges or mars the independence of judiciary. This, therefore, disposes of Point No. 3 relating to policy of General Transfers and the question of validity of the Circular.
430. As regards the question of appointment of Additional Judges under Article 224, the interpretation of Article 217, the questions of locus and primacy, the exposition of the concomitants of consultative process, I generally agree with my Brothers Bhagwati, Desai and Venkataramiah JJ., who have elaborately dealt with these points.
431. So far as the question of privilege is concerned, the matter was argued with all its ramifications by counsel for the parties. All my Brother Judges after hearing the arguments passed an interim Order on 16-10-81 directing disclosure of the documents concerning the secret correspondence between various authorities. I, however, found myself, with due respect to my Brother Judges, unable to agree with the view taken by them and passed the following Order on the same date:
“I am afraid, I am unable to persuade myself to agree with and express my respectful dissent from the Order passed by Brother Bhagwati J. and other Brother Judges directing disclosure of the contents of the documents, I am clearly of the opinion, after inspecting the documents and considering the pros and cons, various shades and aspects of the matter with all its ramifications that it is not in public interest to disclose the contents of the documents and I accordingly uphold the plea of privilege taken by the Union of India. I am aware that my voice is a lone dissent but I am satisfied that I am in good company with my judicial conscience.
Reasons for this Order will be given by me along with the judgment rendered in the cases.
432. I now set out to give the detailed reasons which led me to dissent from the views taken by my learned colleagues. I had mentioned in my interim Order that mine was a lone voice of dissent but I felt consoled that I was in good company with my judicial conscience.
433. To begin with, in dealing with the question of privilege, we cannot view this important branch of law divorced from the socio-economic conditions of our own country nor can we overlook the special conditions–political, economic and social–prevailing in the largest democracy of the world. Any judicial reform however radical or meaningful it may be, must like a sage counsel be slow and gradual because it is the last refuge for those who seek Justice from the courts of law, One of the most prominent distinctive features of the laws of our country on the question of privilege is that the doctrine of privilege is governed not merely by case law but by statute law as also by Constitutional provisions, These provisions are contained in Sections 123 and 124 of the Evidence Act, Section 162 of the CrPC and Article 74(2) of the Constitution of India. In deciding the plea or privilege taken by the State or the party concerned, the provisions of the codified law, which have not been changed so far, must receive full and effective consideration at our hands. It is not for the first time that claim of privilege has been taken by the Government in this case but the law is now well settled by the decisions of this Court as also of various High Courts including the Privy Council. I would not like to burden this judgment, which has already become unduly long, with, the long course of decisions of the High Courts covering a period of more than a century but would like to confine myself to the authorities of this Court and some English and American cases on which reliance has been placed by counsel for the petitioners.
434. Before proceeding to the decisions, it may be necessary to extract the relevant provisions of the codified law of our country. Article 74(2) which contains a constitutional mandate by preventing any inquiry into an advice tendered by the Minister to the President runs thus:
“74(2). The question whether any, and if so what, advice was tendered by by Ministers to the President shall not be inquired into in any Court.
435. Sections 123 and 124 of the Evidence Act may be extracted thus:
“123. Evidence as to affairs of State–No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit,
124. Official communications–No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure.
436. Section 162(1) of the CrPC runs thus:
162(1). No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
437. A plain reading of these provisions would show that these provisions are expressed in a negative form which is the clearest possible proof of the fact that the legislature has incorporated a direct prohibition against the use of documents mentioned in the aforesaid provisions.
438. Thus, a disclosure can be allowed only in exceptional circumstances where there is no injury to public interest because public interest is always paramount to private interest. In fact, these provisions clearly contain four important attributes of the doctrine of disclosuret–
(1) public interest, (2) confidentiality, (3) candour, and (4) expediency.
439. A reading of these provisions would also show that the legislature seems to have laid the greatest possible emphasis on public interest and confidentiality aspects of these documents. I shall now refer to some of the leading decisions of this Court which have construed the doctrine of privilege as contained both in Section 162 of the Coda of Criminal Procedure and Section 123 of the Evidence Act, and have laid down principles which should be adopted by courts in allowing disclosure or upholding the plea of privilege.
440. I would first refer to the case of State of Punjab v. Sodhi Sukhdev Singh which may justly be regarded as the locus classicus regarding the doctrine of disclosure where Gajendragadkar J., with whom Sinha C.J. and Wanchoo J. agreed, observed as follows (at p. 501):
…A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public and private interest, the latter must yield to the former.
441. It may be noticed here that Gajendragadkar J. was fully alive to the fact that even as a result of the non-production of the relevant material or documents the litigant may feel dissatisfied but that will not affect the basic principle that public good and interest must override considerations of private good. Here this Court made a distinct departure from the view taken by the American Courts where the concern for the amount of prejudice caused to the litigant is so paramount as to form the bulwark and fundamental consideration for directing disclosure and in some cases even injury to public interest has to yield to the requirements of the litigant.
It is, therefore, clear that this Court has not accepted and in my opinion rightly, the extreme view of the American courts. This Court in Sodhi Sukhdev Singh’s Case (supra) made the following observations:
Care has, however, to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provision of Section 123. Subject to this reservation the maxim silus populi est supreme lex which means that regard for public welfare is the highest law is the basis of the provisions contained in Section 123. Though Section 123 does not expressly refer to injury to public interest that principle is obviously implicit in it and indeed is its sole foundation.
Having regard to the notion about governmental function and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions ex-pressed or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy.
…. …. ….
In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public, affairs.
…. …. …. ….
It is, however, necessary to remember that where the legislature has advisedly refrained from defining the expression “affairs of State” it would be expedient for judicial decisions to attempt to put the said expression into a strait-jacket of a definition judicially evolved, It must be clearly realised that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the Minister incharge of the department or even the Government in power, has no relevance in making a claim for privilege under Section 123.
…. …. …. ….
The sole and only test which should determine the decision of the head of the department is injury to public interest and nothing else.
…. …. …. ….
Thus our conclusion is that reading Sections 123 and 162 together the Court Cannot hold an inquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the court is competent, and indeed is, bound, to hold a preliminary inquiry and determine the validity of the objections to its production, and that necessarily involves an inquiry into the question as to whether the evidence relates to an affair of State under. Section 123 or not.
(Emphasis mine)
442. Duncan v. Cammell, Laird & Co. (1942) AC 624 was also noticed by this Court and it was pointed put that it was not necessary to consider the true nature and effect of the principle as adumbrated in that case, because in India we are governed by the provisions of Section 162 of the CrPC which clearly confers powers on the court to determine the validity of objections raised in Section 123 of the Evidence Act. Hence, there would be no occasion to exercise the inherent, power of the Court. In this connection, this Court made the following observations in Sodhi Sukhdev Singh’s case (supra), Without knowing more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody the minutes of the meetings of Council of Ministers and would indicate the advice which” the Council ultimately gave to the Rajpramukh. It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, Sub-article (3) of the Constitution; and in the case of such advice no further question need to be considered. The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers.
443. These observations come very close to the matters in dispute contained in the secret correspondence sought to be disclosed because here also they dealt with the Minute of the meeting of the Ministers, viz., the Law Minister, the CJI and the CJ, Delhi which form the foundation, though not an actual part of the advice tendered to the President. These documents were held to be fully privileged. Kapoor J. in a concurrent judgment in Sodhi Sukhdev Singh’s case (supra), however, clarified the position thus:
Thus the documents, which are protected from production, are those the production of which would be prejudicial to the public interests or those which belong to that class which as a matter of practice, are kept secret for the proper maintenance of the efficient working of the public service.
(Emphasis supplied)
444. The learned Judge after summing up the entire English law on the subject observed as follows: (at p. 516) Thus the law as stated in these old English cases shows that what was injurious to the public interest or prejudicial to the proper functioning of the public services was not to be disclosed and if the objection was based on these grounds it must prevail.
445. Construing the provisions of Section 123 of the Evidence Act, the learned Judge observed thus :
The words of Section 123 are very wide and the discretion to produce or not to produce a document is given to the head of the department and the court is prohibited from permitting any evidence to be given which is derived from any unpublished documents relating to affairs of State.
446. Subba Rao J. also in a concurring judgment while maintaining the claim of privilege pointed out that the earlier decisions of, English courts indicates that the ground of privilege was sustained only in regard to the documents pertaining to matters of administration, defence or foreign relations whose disclosure would be against public interest. In the instant case, the documents in question undoubtedly relate to matters of administration of high-powered constitutional functionaries and would, therefore, fall within the ambit of the Rule of law laid down by the English courts. Subba Rao J. (as he then was) took care to point out that the Evidence Act was enacted when the concept of a Welfare State had not arisen but even after independence the interpretation of the words ‘affairs of the State’ cannot be given a separate meaning but have to be construed on the basis that our Constitution aims at setting UP of a Welfare State. In this connection, the learned Judge observed as follows (at p. 527 of AIR 1961 SC):
But when the words are elastic there is no reason why they should not be so construed as to include such activities also, provided the condition of public injury is also satisfied. It is, therefore, clear that the words “affairs of State” have acquired a secondary meaning, namely those matters of State whose disclosure would cause injury to the public interest.
447. Stressing that the cardinal test for upholding the plea of privilege should be that the disclosure of the documents would be injurious to the public interest the learned Judge observed as follows (at p. 527 of AIR 1961 SC):
I cannot, therefore, give a wide meaning to the words records relating to affairs of State” so as to take in every unpublished document pertaining to the entire business of State, but confine them only to such of the documents whose disclosure would be injurious to public interest.
448. The learned Judge further pointed out that there was no conflict between Sections 123 and 162 of the Evidence Act even on the interpretation sought to be put on the doctrine of privilege by the learned Judge. In this connection he observed thus (at p. 530 of AIR 1961 SC):
There is no conflict between Section 123 and Section 162 of the Act: the former confers a power on a head of a department to withhold permission from the stand-point of State Administration, whereas Section 162 recognises the over-riding power of a court in the interest of higher, public interest to overrule the objection of privilege.
449. Finally, while laying down the working rules of guidance regarding matters of privilege, the learned Judge laid down the following guidelines (at p. 532 of AIR 1961 SC):
Subject to the overriding power of the court to disallow the claim of privilege in exceptional cases, the following provide working rules of guidance for the courts in the matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State: (a) “records relating to affairs of State” mean documents of State whose production would endanger the public interest; (b) document pertaining to public security, defence and foreign relations are documents relating to affairs of State: (c) unpublished documents relating to trading, commercial or contractual activities of the State are not, ordinarily, to be considered as documents relating to affairs of State; but in special circumstances they may partake of that character: (d) in cases of documents mentioned in (c) supra, it is a question of fact in each case whether they relate to affairs of State or not in the sense that if they are disclosed public interest would suffer.
450. In Amar Chand Butail v. Union of India another Constitution Bench adopted the same view which was taken in Sodhi Sukhdev Singh’s case AIR 1961 SC 4931 (supra). Gajendragadkar CJ speaking for the Court observed thus (at p. 1661 of AIR 1964 SC):
In view of the fact that Section 123 confers wide powers on the head of the department, this Court took the (sic)tion of sounding a warning that the heads of departments should act with scrupulous care in exercising their right under Section 123 and should never claim privilege only or even mainly on the ground that the disclosure of the document in question may defeat the defence placed by the State. Considerations which are relevant in claiming privilege on the ground that the affairs of the State may be prejudiced by disclosure must always be distinguished from considerations of expediency which may persuade the head of the department to raise a plea of privilege on the ground that if the document is produced, the document will defeat the defence made by the State.
451. In this case, a clear distinction was sought to be drawn between the doctrine of confidentiality and that of expediency, In other words, this Court decided that where a particular document did not relate to affairs of the State as such, but if the document was produced it may defeat the defence taken by the State, that alone would not be sufficient to uphold the plea of privilege. In the instant case, however, this doctrine does not apply at all.
452. In State of U.P. v. Raj Narain . another Constitution Bench of this Court observed thus (at Pp. 872, 875):
A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of State, State papers, confidential official documents and communication between the government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service.
(Emphasis supplied).
The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national Interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contained material which it would be damaging to the national interest to divulge but rather that the documents would be of clam which demand protection.
(Emphasis mine).
453. The aforesaid observations of Ray CJ appear to be on all fours with the facts and circumstances of the present case because the documents consisting of the secret correspondence, amply answer the description of the documents which were being dealt with in that case.
454. Mathew J. in his concurring judgement expressed a similar view and after dealing with a large number of English cases observed as follows (at p. 883 of AIR 1975 SC):
In other words, if injury to public interest is the foundation of this so called privilege, when once the Court has enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of State, it would be a futile exercise for the minister or the head of the department to consider and decide whether its disclosure should be permitted as he would be making an enquiry into the identical question. It is difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that arrived at by a court “as regards the effect of the disclosure of the document on public interest unless he has or can have a different concept of public interest.
455. The learned Judge, however, was prepared to make exception in cases of documents which related to common routine business which had no relation to interests of the public. The Judge pointed out that a mere veil of secrecy put on such documents would not prevent the court from directing disclosure and observed thus (at p. 884): To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of official business and It must be further a secrecy which has remained or would have remained inviolable but for the compulsory disclosure.
456. The documents in question fall squarely within the test laid down by Mathew J.
457. The Privy Council in Henry Greer Robinson v. State of South Australia (1931) AC 704 held that the foundation upon which the protection against disclosure of official record is based is that the information cannot be disclosed without injury to the public interest, and Lord Blanesburgh observed as follows:
As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected, have usually been public official documents of a political or administrative character. Yet the rule is not limited to these documents. Its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their non-production.
458. Thus, in the instant case the twofold tests laid down by Lord Blanesburgh are fully satisfied because (1) the papers, are in the nature of public official documents of administrative character, and (2) the disclosure of these documents will lead to serious injury to the public.
459. In Duncan’a case ((1942) AC 624) (supra) the following observations were made:
…but the rule that the interest of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering Justice, quite unconnected with the interest or claims of the particular parties in litigation, and, indeed, is a rule on which the Judge should, it necessary, insist, even though no Objection is taken, at all.
The minister in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of with-holding production except in cases where the public interest would otherwise be damnified for example, where disclosure would be injurious to national defence, Or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. When these conditions are satisfied and the minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration.
(Emphasis supplied).
460. This case goes even to the extent, that if the Minister does not claim the plea of privilege, it is for the Court itself not to allow disclosure where the disclosure would be injurious to national defence, good diplomatic relations or proper functioning of the public service. This decision, therefore, is fully in accordance with the principles enunciated by this Court as referred to above.
461. It was contended that the validity of Duncan’s case ((1942) AC 624) has been considerably weakened by a later English decision in Conway v. Rimmer (196B) AC 910 and therefore no reliance should be placed on Dun-can’s case. We are, however, unable to agree with this argument because Conway’s case has not only not overruled Duncan’s case but has held that it was rightly decided In this connection Lord Reid made the following observations:
I have no doubt that the case of Duncan v. Cammell. Laird it Co. Ltd. was rightly decided.
462. Lord Reid reiterated the same principle which has been enunciated by the English courts and followed by this Court and observed thus:
It is universally recognised that there are two kinds of public interest which may clash. There is the public Interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
463. The twin tests which flow from these observations fully apply to the facts and circumstances of this case. We are, therefore, unable to regard Conway’a case ((1968) AC 910) as having overruled the ratio in Durican’s case. ((1942) AC 624). On the other hand; Even on the authority of Conway’s ‘case, the disclosure of the documents in question ought not to be allowed. Moreover, these observations clearly show that the principles enunciated by Lord Simon in Duncan’s case were approved. It is true that the ratio in Duncan’s case after having been approved was explained away and limited to cases where disclosure of documents was not in public interest and disclosure could be permitted only by striking a just balance between the public and the private interest.
464. Thus, Conway’s case does not fully support the contention of Mr. Sorabjee. So far as this Court is concerned, it has not gone to the extreme limit to which Conway’s case goes and therefore, I would like to prefer the decisions of this Court to that of Con-way’s case where the law appears to have been somewhat Overstated by Lord Reid.
465. Reliance was also placed by Mr. Sorabjee on the case of Rogers y. Home Secretary (19731 AC 388 and particularly on the observations of Lord Pearson which may be extracted thus:
The court has to balance the detriment to the public interest on the administrative or executive side. which would result from the disclosure of the document or information, against the detriment to the public interest on the judicial side, which would result from non-disclosure of a document or information which is relevant to an issue in legal proceedings. Therefore, the court, though naturally giving great weight to the opinion of the appropriate minister conveyed through the Attorney General or his representative, must have the final responsibility of deciding whether or not the document or information is to be disclosed.
466. Another passage which explains the ratio in clear terms may be extracted thus:
It is true that the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material (Rex. v. Hardy (1794) 24 State Tr. 199. 808; Marks v. Beyfus (1890) 25 QBD 494. Conway v. Rimmer 1968 AC 910, but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted.
467. Ultimately while taking a broad and practical view on the question, Lord Salmon observed thus:
In my view, any document or information that comes to the board from whatever source and by whatever means should be immune from discovery. It is only thus that the board will obtain all the material it requires in order to carry out its task efficiently. Unless this immunity exists many persons, reputable or disreputable, would be discouraged from communicating all they know to the board, They might well be in fear not only of libel actions or prosecutions for libel but also for their safety and may be their lives.
468. Taking the facts of this case at their face value, I do not see how it can help the argument of Mr. Sorabjee on the question of disclosure of the documents. In fact, this case also does not depart from the previous views taken by the House of Lords and the privy Council regarding the importance of public interest or injury to public interest in respect of the documents sought to be disclosed. This case, however, takes a step forward by insisting that the principles enunciated in Conway’s case ((19,68) AC 910) would show that a just balance should be struck between the ground on which the Union of India claims privilege and the claim of the petitioners for disclosure. Applying the ratio of this case to the facts of the present case, it would be seen that if the documents are not disclosed, the petitioners would not suffer serious prejudice because the undisputed facts show that the Chief Justice of Delhi High Court had for reasons given by him opined that the term of Justice Kumar ought not be extended. The CJI, however, expressed a contrary view. It was, therefore, for the President to choose any of the two views. Thus, disclosure of details would have undoubtedly caused serious damage to public interest by exposing not only the petitioner-Kumar but also the CJ. Delhi High Court and the CJI to public gaze and criticism which would be highly derogatory to the high position that these high constitutional functionaries hold and would in future deter them from expressing any opinion on the merit of future appointments which might result in an insoluble stalemate. Thus, balancing the two factors, there can be no doubt that the weight is on the side of the Union of India.
469. Strong reliance was placed by Mr. Sorabjee in Sankey v. Whitlam 21 Australian LR 505 where Stephen J. relying on Rogers’ case ((1973) AC 388) (supra) and other cases dwelt on the doctrine of balancing process and observed as follows:
If in the balancing process the circumstances of a particular case can affect the relative weight to be given to each of the respective public interests when placed in the scales, the outcome in the present case seems to me to be clear. * * * * The affidavits sworn by members of the present ministry and by senior public servants make it clear that all the claims to Crown privilege are class claims, not contents claim; it is not suggested that to disclose the contents of any of the documents, the Loan Council documents apart, will of itself result in detriment to the public interest flowing directly from the nature of what is disclosed.
(Emphasis mine).
470. A perusal of the facts of this case would show that in the said case the documents were really not of a secret nature so as to fall within the contours of the claim of privilege. There was also a finding given by the court that the documents would not result in any detriment to public interest flowing directly from the nature of what is disclosed. Contrary appears to be the case so far as the documents, which are the subject matter of disclosure, in the instant petitions are concerned These observations do not help the petitioners because they are based on a clear finding of fact that there was nothing remarkable about the documents in order to tilt the scales in favour of nondisclosure. It was also held that the affidavits did not clarify whether the claim of privilege was class-claim and not contents-claim. As already indicated, the documents in this case pertain to high official secrets revealed in the documents of high constitutional functionaries regarding matters which if disclosed would doubtless cause serious injury to the public and has in fact caused the most colossal damage not only to the Government but also to the judicial institution itself.
471. In Sankey’g case (21 Aug. LR 505) the following observations were made:
An explanatory memorandum and schedule relating to a meeting of the Executive Council held on 7 January, 1975. It should be explained that when a matter is brought before a meeting of the Executive Council a minute paper is prepared; it sets out the advice tendered to His Excellency the Governor-General in Council and is signed by the minister concered. Each minute is accompanied by an explanatory memorandum which usually sets out the reasons for the advice. All minutes to be submitted to the Executive Council are listed on a schedule, which is signed by those present at the meeting. If the Governor-General is not present at the meeting the minutes and schedule are later submitted to him for signature. The Commonwealth did not claim privilege for the minute paper to which the explanatory memorandum and schedule now in question related.
472. Gibbs, ACJ upholding the claim Of privilege observed as follows:
Privilege was claimed for the documents in category 1 by the affidavit of Mr. Carmody, which stated that all members of the Executive Council are required to make an oath or affirmation of secrecy. The affidavit contained the following” “The documents referred to …relate to advice given and recommendations made to the Federal Executive Council and the deliberations and decisions of that Council as to the inner workings of the Executive Government of the Commonwealth of Australia. In my opinion such documents belong to a class of documents which public interest requires should not be disclosed. Further, disclosure of such documents would inhibit the proper functioning of the Executive Government and non-disclosure of such documents is necessary for the proper functioning of the public service.
473. In Marconi’s Wireless Telegraph Co. Ltd. v. The Commonwealth 13 Commonwealth LR 178, Isaacs, J. observed as follows:
Now, when that “State paper”, or, as here, a “State wireless instrument”. As sought to be produced, and, its official character is unquestioned, the plaintiff’s contention is, as I have already said, the court must still in some way and to some extent satisfy, itself by some further inquiry, that the object is within a privileged class, I suppose by reason of its being of a nature that may require concealment, before it can accept the minister’s assurance as to public prejudice.
474. In this case also, the Court merely held that where an instrument is judged by the court to be of an official character the Minister’s plea of public prejudice must be upheld. Even so, the facts of this case are clearly distinguishable from the facts of the present case.
475. In Alfred Crompton Amusement Machines Ltd, v. Customs & Excise Commissioners (1974) AC 405. Lord Cross of Chelsea while dwelling on the nature of confidentiality which is doubtless one of the aspects of privilege, observed as follows:
Confidentiality” is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the document in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other.
476. Here also it was held that while dealing with the question of confidentiality the most material consideration would be whether privilege was claimed on the ground of public interest and the duty of the court is to balance the considerations of public interest against the injury which may be caused by disclosure and if it finds that the injury to public interest would be minimal, disclosure can be allowed. This case also does not in any way seem to be of any assistance to the petitioners.
477. Mr. Sorabjee strongly relied on the famous American case of United States v. Richard M. Nixon (1974) 41 L Ed 2d 1309 and particularly on the following observations made by the court:
Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute unqualified presidential privilege of immunity from judicial process under all circumstances;
478. These observations must be read in the light of the peculiar provisions of the American Constitution contained in Articles 2 and 3. The doctrine of absolute candour so as to prevail over the unqualified privilege of immunity from judicial process is absolutely foreign to the nature and character of the provisions enshrined in Article 74(2) of our Constitution and Sections 123 and 131 of the Evidence Act. Therefore, these observations cannot be called into aid by our courts in dealing with the question of privilege. I have already pointed out that this Court has clearly held that we ought not to be guided by American decisions because in framing our Constitution, we have chosen to select the English pattern even though the American Constitution was available and was in fact considered by the Founding Fathers of our Constitution.
479. Thus, the United States decision referred to above must be understood in the light of its own facts and the special provisions of the American Constitutional law under which there is a complete separation of powers unlike our Constitution where to some extent there is separation of power but by and large all the powers of the appointment of the higher judiciary and their transfer vests in the executive, viz.. the President of India. In these circumstances, therefore, the doctrine of ‘candour’ or ‘confidentiality’ propounded by the American Supreme Court cannot be blindly applied to the provisions of the Indian Constitution which has features of its own substantially different from those of the American Constitution as indicated while dealing with interpretation of Article 222. The extreme limit to which the U.S. Supreme Court appears to have gone is directly opposed to the scope of Sections 123 and 124 of the Evidence Act as interpreted by this Court in Sodhi Sukhdev Singh’s case (supra).
480. This Court in Shyamlal Mohanlal’s case AIR 1965-SC 1251 (supra) has clearly held that the plea of privilege cannot be determined, on the principles enunciated by the American Judges which could not apply to our country. This is particularly so, when the habits and tempers of our people, their outlook and vision, and their concepts and way of life are quite different from the ways of life of the American people.
481. In Shyamlal Mohanlal v. State of Gujarat AIR 1965 SC 1251 at p. 1253 (supra) this Court observed thus:
In the United States of America where the immunity against self-incrimination is constitutional, the Fifth Amendment provides:
No person…shall be compelled in any criminal case, to be a witness against himself.
By judicial interpretation the rule has received a much wider application. The privilege is held to apply to witnesses as well as parties in proceedings civil and criminal: it covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction, or furnish a link in the chain of evidence, and to production of chattel sought by legal process.
The rule of protection against self-incrimination prevailing in the United Kingdom, or as interpreted by Courts in the United States of America has never been accepted in India. Scattered through the main body of the statute law of India are provisions which establish beyond doubt that the rule has received no countenance in India. Section 132 of the Evidence Act enacts in no uncertain terms that a witness shall not be excused from answering any questions as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. This provision runs directly contrary to the protection against self-incrimination as understood in the common law in the United Kingdom.
(Emphasis mine).
482. On a parity of reasoning, it can be safely concluded that the statutory provisions of Sections 123 and 124 of the Evidence Act as also those of Article 74(2) of the Constitution have fully safeguarded high Government and official secrets and disclosure is prohibited in public interest unless the Court is fully satisfied that disclosure will not harm the public interest. Thus, this Court has clearly pointed out that on this aspect of the matter, the rule of protection against self-incrimination as prevalent in the United Kingdom or U.S.A. has never been accepted India. This is yet, an additional reason why I am not in a position to rely on the American doctrine of candour or the recent decisions of the English courts referred to above.
483. Cross on Evidence (6th Edition) clearly states that documents may be withheld in public interest on account of their contents. In this connection the author observes as follows:
‘The judgment shows that the production of a document may be withheld in the public interest either on account of its contents, or else because it belongs to a class which, on ground of public policy, must as a class be withheld from production (e.g. cabinet minutes).
484. Wigmore on Evidence (Third Edition-Vol. VIII) at page 801 summarises the conclusions regarding State secrets and official documents derived from American decisions on the question of privilege thus:
The privilege, when recognized, should therefore be subjected to the following limitation:
(1) Any executive or administrative regulation purporting in general terms to authorize refusal to disclose official records in a particular department when duly requested as evidence in a court of justice should be deemed void.
(2) Any statute declaring in general terms that official records are confidential should be liberally construed to have an implied exception for disclosure when needed in court of justice.
(3) The procedure in such cases should be: A letter of request (like a letter rogatory) from the head of the Court to the head of the Department (accompanying the subpoena to the actual custodian), stating the circumstances of the litigation creating the need for the document followed (in case of refusal) by a reply from the Departmental head stating the circumstances deemed to justify the refusal; and then a ruling by the Court, this ruling to toe appealable and determinative of the privilege.
485.The view of the author, therefore, fully reflects the summary of the decisions given by the American Courts on the question of privilege. It may be noticed that Clause 2 particularly recognises that where official records are declared to be confidential by 9 statute. the statute should be liberally construed to have an implied exception for disclosure when needed in a court of justice. The principle contained in Clause (2) of the aforesaid extracts is clearly enshrined in Sections 123 and 124 of the Evidence Act without the exceptions which have been carved out by American decisions. On the other hand, the position under the Evidence Act is that official or confidential records or documents cannot be disclosed unless the court comes, to the conclusion that the disclosure will not cause any injury to public interest. The American doctrine at candour, as already stated, cannot be applied to the conditions in India in view of our own statute laws containing express provisions contrary to the principles enunciated by the American courts.
486. David Foulkes in his book ‘Introduction to Administrative Law’ has observed thus:
It laid it down that Crown privilege can be claimed for a document on two alternative grounds: (a) that the disclosure of the contents of a particular document would injure the public interest, for example, by endangering national security or prejudicing good diplomatic relations; (b) that the document falls within a class which must be withheld from production to ensure the proper functioning of the public service.
487. It appears that whereas the English, Australian and our own courts have consistently and without any exception categorically held that military or defence secrets are absolutely privileged and the contents of the documents containing these secrets can never be divulged under any circumstances, the American courts seem to have taken a contrary view and while leaning on the side of non-disclosure even in the case of military secrets they have not excluded the possibility of allowing disclosure under certain circumstances. This is clearly spelt out by the decision of U.S. Supreme Court in United States of America v. Patricia J. Reynolds (1952) 345 US 1. The American courts do not seem to follow the threefold tests laid down by our courts as also the English courts in judging the plea of privilege, viz., (1) documents containing military or defence secrets, (2) the direct conflict between public interest and individual interest; and (3) the doctrine of expediency regarding affairs of the State and injury to public interest or national interest.
488. In fact, the correct legal position seems to be that whereas mere expediency may not be a ground to claim privilege so as to avoid production of a document which, if produced, may defeat the defence, where the documents consist of highly confidential matters in respect of constitutional functionaries like Chief Justices or High Court Judges, the Law Minister, the President of India; C.B.I, I.B. and such other Departments are concerned, the question of public injury, which may be caused, becomes a decisive factor in upholding the plea of privilege. The court is. however, not powerless to hold its own enquiry in order to test the bona fide of the plea of privilege. One form of such an enquiry may be, as pointed out in the cases referred to above, the inspection of the documents themselves by the court before disclosure. If after inspection the court finds that the plea of privilege is well-grounded and its disclosure will lead to great public injury, it will be justified in upholding the plea of privilege.
489. It is true that recent English decisions have made a slight departure from the consistent and somewhat conservative view taken by them in the earlier cases, but despite this change, the central theme and the contours and parameters within which the plea of privilege can be allowed have not been totally discarded.
490. As far back as 1916 the Court of Appeal in England while dealing with the question of privilege clearly held that the protection of documents from discovery was not only based on the broad principles of State policy or public convenience but extended to public confidential documents of a political or administrative character. In this connection in Asiatic Petroleum Co. Ltd. v. Anglo-Persian Oil Co. Ltd. (1916) 1 KB 822 at p. 829. Lord Swinfen Eady observed as follows:
Although the instances in which documents have been held to be protected from discovery on the broad principle of State policy and public convenience have usually been cases of public official documents of a political or administrative character, yet the rule is not limited to these documents. The foundation of the rule is that the information cannot be disclosed without injury to the public interest, and not that the documents are confidential or official, which alone is no reason for their non-production.
491. In taking this view the court had relied on an earlier decision in Hennessy v. Wright (1888) 21 QBD 509.
492. In the Corporation of the City of Glasgow v. The Central Land Board 1956 SC (HL) 1, at p. 18 Lord Raddiffe observed thus:
I do not understand that the existence of the power involves that in Scotland, any more than in England, it is open to the Court to dispute with the Minister whether his view that production would be contrary to the public interest, is well founded, or to arrive at a view, contradictory of his, that production would not in fact be at all injurious to that interest. …. …. …. ….
The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially.
493. This decision clearly spells out the proposition that though normally the claim of privilege made by the Minister should be accepted by the Court but at the same time some aspects of public interest may be considered where withholding disclosure of a document may defeat the very claim of the plaintiff. Lord Radcllffe has, however, made it very clear that documents containing matters of high politics, diplomatic relations or such secrets would undoubtedly be privileged. Thus, so far as this case is concerned it fully supports the position taken by the Union of India in claiming the plea of privilege in respect of the documents concerned.
494. In D. v. National Society for the Prevention of Cruelty to Children (1977) 1 All ER 589 it was held that the administration of justice was a fundamental public interest though not an exclusive public interest.
495. Although the facts of this case are quite different from the facts of the present case, yet the case cited above undoubtedly recognised administration of justice as a fundamental’ public interest. Once this is so, then by the force of Section 123 of the Act, disclosure cannot be permitted and the Government would be entitled to take the plea of privilege,
496. In none of these cases, the document in respect of which privilege was claimed related to top secrets of high officers involving Government decisions on important policy matters relating to higher judiciary as in the present case. In these circumstances, these cases are not of much assistance to the petitioners.
497. In Science Research Council v. Nasse 1980 AC 1028 a complaint was filed with the Industrial Tribunal alleging discrimination on grounds of sex and marital status. At the hearing a prayer was made for the petitioners for inspection and discovery of certain documents which were in the nature of confidential assessments of each employee. The Tribunal ordered the disclosure and the Appellate tribunal also confirmed it. On appeal to the court of Appeal, a fresh affidavit was filed showing the nature of the confidentiality of the documents. The appellate court held that if the documents were disclosed it would amount to breach of faith and could lead to industrial trouble thus causing injury to public interest. The appellate court, however, set aside the order allowing the plea of privilege and held that the documents were not entitled to privilege. The decision of the appellate court was confirmed by the House of Lords in appeal where it was held that no principle of public interest immunity protected such confidential documents and they were not immune from disclosure on the basis of confidentiality alone. Great reliance has been placed by the petitioners on this aspect of the matter decided by the House of Lords. It is true that the plea of privilege on the ground of confidentiality was overruled but the decision given by the House of Lords cannot be divorced from the facts before them. What was sought to be disclosed were merely confidential reports of the employees concerned. No great constitutional or legal importance was attached to the documents as such or for that matter the documents as we have in the instant case. In this connection, Lord Edmund-Davies observed as follows:
Whether a tribunal or court should decide that they themselves should inspect must always depend on the particular facts and issues, though it is difficult to see how they can ever properly conclude that discovery is “necessary” without such inspection. But where a court inspection is decided upon, there can be no hard and fast rule as to when it should take dace.
…. …. …. ….
The Court of Appeal rightly held that discovery should not have been ordered in either of these two cases without the respective industrial tribunals or the appellate courts first inspecting the withheld documents. That unfortunately not having been done, it follows that both appeals should be dismissed.
Lord Fraser spoke in the same strain and held that confidentiality was not a separate head of privilege but may be a very material consideration to bear in mind when the question of privilege is raised.
498. Thus, what the House of Lords held was that the element of confidentiality in the documents was not so acute or sensitive as to create any public interest. On the other hand, public interest itself in the circumstances required disclosure. This case, therefore is of no assistance to the petitioners because the facts of the present case are essentially different from the facts of that case. In the instant case, after inspection of the documents it cannot be said that only private interests were involved and that there was no injury to public interest. The disclosure of the confidential notes and correspondence between three very high constitutional functionaries, viz., CJI, Law Minister and the CJ, Delhi High Court containing matters on which no public debate could be allowed were undoubtedly matters of great public interest. On the other hand, the interest of Justice Kumar was a purely individual interest which must yield to public interest. On the face, therefore, of the ratio of this case, the plea of privilege would have to be upheld straightway.
