795. Krishna Iyer, J. speaking for himself and & Murtaza Fazal Ali, J., while concurring with this view, observed that the President must communicate to the Chief Justice all foe material he has and the course he PROCESSES. The Chief Justice in turn must reflect 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 (at p. 496) (of 1978-1 SCR): at p. 2380 of AIR 1977 SC. At another place it was observed as under: Before giving his opinion the Chief Justice of India would naturally take into consideration all relevant factors and may informally ascertain from the judge concerned if he has any real personal difficulty or any Humanitarian ground on which his transfer may not be directed. Such grounds may be of a wide range including his health or extreme family factOrs. It is not necessary for the Chief Justice to issue formal notice to the Judge concerned but it is sufficient although it is not obligatory — if he ascertains these facts either from the Chief Justice of the High Court or from his own colleagues or though any other means which the Chief justice thinks safe, fair and reasonable. Where a proposal of transfer of a Judge is made the Government must forward every possible material to the Chief Justice so that he is in a position to give an effective opinion. Secondly, although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily.” (at pp. 501, 502) (of SCR): (at p. 2384 of AIR).
796. The majority view is that it is not possible to read words ‘with his consent’ in Article 222 and non-reading of these words would not jeopardise independence of judiciary otherwise guaranteed by the Constitution. It was held that a non-consensual transfer is within the purview of Article 222.
797. On the question of policy transfers which loomed large in the present ease, Chandrachud, J. observed that whether it is necessary to transfer Judges from one High Court to another b the interest of national integration is a moot point, but that is a policy matter with which Courts are not concerned directly (see P. 450) (of SCR)- (at p. 2344 of AIR 1977 SC). At another place he held that policy transfers on a wholesale basis which leaves 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 (p. 454) (of SCR) : (at p. 2347 of AIR). Krishna Iyer, J. in this context expressed himself in a forceful way when he said that 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’ (see p. 901) (of SCR): (at p. 2383 of AIR) Untwalia. J. after attempting to spell out specific public interest to subserve which a transfer of a High Court Judge can be ordered, ultimately concluded that these are matters of policy decision entirely within the realm of the Governmental power (p. 507) (of SCR): (at p. 2387 of AIR). The minority view of Bhagwati, J. and Untwalia, J. held that non-consensual transfer is outside the purview of Article 222 but both of them reached the conclusion by a different process of reasoning. Bhagwati, J held that having examined various provisions at the Constitution unerringly pointing towards assuring independence of judiciary from executive pressure, to further fortify and insulate it, the Court should give to the expression ‘transfer’ in Article 222 a limited meaning that it Only comprehends consensual transfer and compulsive transfer is not within the purview of the Article. Untwalia J. held that there may be necessity and Justification on the ground of public interest or policy for the transfer of Judges from one High Court to another, although it may be few and far between of even punitive in character, bat to do so without the consent of the Judge concerned will bring about devastating results and cause damage to the tower of judiciary and erosion in its independence.’ He was, therefore of the view that an additional safeguard is necessary to insulate the judiciary and he found that safeguard by holding that Judge cannot be transferred under Article 822 without his consent. Bhawati, J. agreed with Krishna Iyer, J. on the scope and content of consultation and Untwalia, J. agreed with Chandrachud, J. on the scope and content of consultation under Article 222. Scope and ambit of consultation under Article 222(1) has been dealt with in the earlier part of this judgment and it is unnecessary to repeat it here.
798. The obligation to consult may arise in different contexts and in different circumstances and situations and for different purposes. Duty or obligation to consult inheres full, effective land meaningful consultation. The situation and context and purpose of consultation would define parameters of consultation. Within the parameters all relevant considerations on which consultation to be effective must be focussed, most be precisely laid down. It was admitted on all hands that transfer is likely to cause hardship and inflict injury both private and to some extent public. In Shamsher Singh’s case AIR 1974 SC 3192 it is in terms stated that sometimes transfer is more harmful than positive punishment. Before the Judge is made to suffer hardship or he is required to suffer injury, certain relevant questions have & be examined and answered so that even a remote chance of transfer by way of punishment may be scrupulously avoided and a firm decision is reached that it is for achieving an avowed public interest. In the context of transfer of a Judge from one High Court to another High Court, the questions which must engage the attention of the concerned authorities may be briefly enumerated. They are (i) why this particular Judge is selected for transfer, (ii) what would be the personal difficulties faced by him in the event transfer is ordered, such as whether his wife is gainfully employed, whether his children are taking education or are gainfully employed, whether the old parents dependent on him would be seriously inconvenienced, whether he is being pushed out from a station which is considered good to a station not so good, whether it is likely to attach any stigma, whether he would have to maintain two establishments, and finally; (iii) whether the public interest for which he is required to be transferred would far outweigh his inconveniences, difficulties and even a possible stigma. Selective transfers generally give rise to canards because ordinarily High Court Judges are not transferred and as late as 1963 the then Law Minister Mr. A.K. Sen assured the parliament that a High Court Judge should not be transferred except by consent and this policy is departed from. Once one or the other Judge is specifically selected for transfer, even if it is (proclaimed to be in public interest, such as a senior, experienced and competent Judge is required for other High Court this hardly satisfies anyone and the Judge really suffers character assassination. It is, therefore, absolutely necessary that all these aspects and many more that can be enumerated, must be specifically and individually examined, discussed, deliberated upon and finally a decision must be reached that the public interest for which transfer is proposed would be served by the transfer. Specific public interest must not be left to guess work but must be precisely stated and must be such that it would far outweigh the personal difficulties, inconvenience and the possible stigma.
799. Principal contention canvassed in the High Court and in this Court in Mr. Sheth’s case was that non-consensual transfer is outside the purview of Article 222, This contention would have stood concluded by the majority decision of the Constitution Bench but as the matter is before a larger Bench, Mr. Seervai made a valiant effort to persuade us to hold that in view of the recent disturbing trends surfacing in the J Indian polity, such as continuous denigration of judiciary and experience proving the safeguards spelt out in Mr. Sheth’s case against the abuse of transfer power, broken reed, coupled with the claim for naked and arbitrary power, the time has come to consider the majority view in Mr. Sheth’s case by further buttressing independence of judiciary and completely insulating it against compulsive transfers by accepting the minority view in Mr. Sheth’s case, that a non-consensual transfer is beyond the purview of Article 222. In support of this submission Mr. Seervai drew attention to some observations in the judgment of Chandrachud, J. and Iyer, J. which according to him are factually incorrect and a decision based on such incorrect assumption would render the majority view not sustainable. I remain unconvinced. In my detailed judgment in Mr. Sheth’s case (1976) 17 Guj LR 1017 in the Gujarat High Court I have given long and elaborate reasons for rejecting the contention that non-consensual transfers are not within the purview of Article 222. I would not reiterate them because I unreservedly accept the majority view of this Court in Mr. Sheth’s case as correct. I would however, briefly deal with some of the submissions of Mr. Seervai in this behalf.
800. The first error in the majority judgment which, it was contended, would necessitate reconsideration of the majority view that it is not necessary to read the words ‘with his consent’ in Article 222(1). was that the majority view proceeds on the erroneous assumption that the Government of India Act, 1935, did not contain any provision for transfer of a High Court Judge. Chandrachud, J. has observed that the Government of India Act (1935) did not contain any provision for the transfer of a Judge. That is why it provided that the office of a Judge shall be vacated either on the Judge being appointed to be a Judge of the Federal Court or on being appointed as a Judge of another High Court (p. 448) (of SCR): (at p. 2342 of AIR). Krishna Iyer, J., who concurs with the majority view has in this context observed that it has already been pointed out above that the Government of India Act did not contain any provision for transfer which was effectuated by appointing a Judge of one High Court to be a Judge of another High Court (p. 493) (of SCR): (at p. 2377 of AIR). In this connection it may as well be pointed out that in the minority judgment, Bhagwati, J. who accepted the contention that Article 222(1) comprehends only consensual transfer has also observed that…there was no specific provision in the Act (Government of India Act, 1935) conferring power to transfer a High Court Judge The power to transfer a High Court Judge was expressly conferred for the first time under the Constitution…(p. 473) (of SCR): (at p. 2362 of AIR). Therefore, the assumption that the Government of India Act, 1935, did not contain a provision for transfer which on further examination turns out to be erroneous did not materially affect the outcome because while accepting this position that there was no such provision, the majority reached the conclusion that Article 222(1) does not cater to only consensual, and that non-consensual transfer is within the purview of Article 222(1). The minority reached an exactly opposite conclusion relying on this very aspect. It would therefore appear that the assumption is not so material as to necessitate reconsideration of the majority view. Even otherwise let me see whether presence or absence of the provision to transfer a Judge in the Government of India Act, 1935, has any bearing on the question, of construction of Article 222(1).
801. Section 220 of the Government of India Act, 1935, provided for Constitution of High Courts. Sub-section (2) of Section 220 provided that ‘every Judge of a High Court shall be appointed by his Majesty by warrant under the Royal Sign Manual and shall hold office untill he attains the age of sixty years There is a proviso to this sub-section (sic) paragraph (c) of which state that the office of a Judge shall be vacated by his being appointed by His Majesty to being Judge of the Federal Court or of and other High Court. It was assumed (sic) the course of arguments in his Sheth’s case before this COURT that paras graph (c) of the proviso to Section 22 of formed part of the Government of India Act, 1935, as originally enacted. On investigation that does not appear to be correct. It is now pointed out that paragraph (c) of the proviso to Sub-section (2) of Section 220 was introduced by Section 2 of the India (Miscellaneous Provisions) Act, 1944. By Section 6 of the 1944 Act retrospective operation was given to the amendment introduced by Section 2 from the commencement of the Government of India Act, 1935. The marginal note to Section 2 of the 1944 Act reads: “Judges to vacate office on transfer.” Referring to this provision it was urged that the word ‘appointed’ in paragraph (c) also comprehends transfer and it was spelt out that the office of a Judge of the High Court would be vacated not only on his appointment as a Judge of the Federal Court but also on his being transferred to another High Court. Earl of Munster during the debate on the provision pointed out that a Judge of a High Court on being appointed to the Federal Court or on being transferred to another High Court would not retain his office of the Judge of the High Court from which he was transferred. In this context he made reference to Section 10 of the Supreme Court of Judicature Act, 1925, which provided that the office of any Judge of a High Court shall be vacated on his being appointed as a Judge of the Court of Appeal. Mr. pethick Lawrence explaining the provision pointed out that the transfer of a High Court to another High Court was implicit in the provision itself and that the proposal is merely intended to be beyond question what was certainly the intention in regard to it. In this context the provision contained in Section 103 of the Government of India Act, 1915-19 was recalled. In Section 103 provision was made for rank and precedence of the High Court Judges inter se according to the seniority of their appointment unless otherwise provided in the patents. This provision was omitted from the Government of India Act, 1935, but it was said that it makes no difference because a similar provision existed and continues to exist in the High Courts Act or the Charter Act of 1861. At this stage it would be worthwhile to recall that in the draft Constitution there was no specific and positive provision for transfer of a High Court Judge. Draft Article 193(1) proviso paragraph (c) had almost bodily incorporated paragraph (c) of Sub-section (2) of Section 220, Government of India Act, 1935, in that it was provided that the office of a Judge shall be vacated on his being appointed by the President to be a Judge of the Supreme Court or of another High Court. And recalling the amendment made to Section 220, paragraph (c) of the proviso by the 1944 Act while retaining the word ‘appointed’ in the body of the paragraph, the marginal note set out the word ‘transfer’ meaning that the expression ‘appointed’ in the context of a Judge of a High Court from one High Court to another High Court obviously comprehends his transfer. However, when the drafting committee forwarded the revised draft Constitution as passed by the Constituent Assembly at the second reading, it recommended certain amendments and changes. One such amendment was present Article 222. The Drafting Committee while forwarding its report with a draft Constitution as revised by it, stated that it has ‘proposed the insertion of Article 222 to enable the President to transfer a Judge of a High Court from one High Court to another. The proposed provision of the Constitution would not permit of any compensatory allowance being given to Judges on such transfer, power has accordingly been reserved to parliament to determine by law the compensatory allowance to be paid in case they are so transferred, and, until, parliament so determines, to the President to fix by order the quantum of such allowance.’ This insertion of Article 222 was accepted by the Constituent Assembly and simultaneously Clause (c) of the proviso to Article 217(1) was amended to read the word ‘transfer’ in place of the word ‘appointed.’ It thus transpires that there was a provision in the Government of India Act, 1935, since its commencement for transfer of High Court Judges from one High Court to another High Court and to that extent the assumption of absence of such a provision as stated in Mr. Sheth’s case is erroneous. What is the sequester? If there was power to transfer a High Court Judge in 1935 Act, logically the argument that our Constitution has adopted the basic scheme of that Act must inevitably lead to the conclusion that the Constitution makers wanted such power to be conferred and made an explicit provision in Article 222. Whether on transfer a fresh appointment is made so as to necessitate the consent of the transferred Judge will be presently examined. But presence or absence of a power to transfer a Judge in the Government of India Act. 1935, would not be decisive of the matter because the Constituent Assembly demonstrably expressed its intention to confer power on the President to transfer a Judge as indicated in Article 222(1). The statement, therefore, in the judgments of Chandrachud, J., Bhagwati, J, and Krishna Iyer, J. in Mr. Sheth’s case that the Government of India Act, 1935, did not contain any provision for transfer of a Judge would not in any manner detract from the binding character of the ratio of the majority judgment, nor on this account a re-examination becomes necessary.
802. It was urged that transfer of a Judge of one High Court to another High Court constitutes fresh appointment and, therefore, if initially a man cannot be appointed without his consent because if such a power was to be conferred on any one it would be a conscription or we may be thrown back to the days of slavery and, therefore, if transfer of a Judge of the High Court amounts to a fresh appointment, ipso facto it cannot be done without his consent. The majority view in Mr. Sheth’s case has rejected this contention and in my opinion for very cogent and valid reasons. Briefly, the reasons for accepting the majority view may be stated.
803. Submission is that on transfer a High Court Judge ceases to be a Judge of the High Court where he was functioning and is appointed a Judge of the High Court to which he is transferred and, therefore, it is a fresh appointment and that it can only be with his consent, When it was pointed out that the framers of the Constitution used the words ‘appointment’ and ‘transfer’ in Article 217(1) proviso (c), in collocation, they must be aware that the connotation of the two words are different and the word ‘transfer’ in itself does not involve a fresh appointment, it was said that the words have been used inters changeably and recourse was taken to the definition of ‘actual service’ set. out in Clause (11) to Second Schedule which includes joining time on transfer from a High Court to the Supreme Court or from one High Court to another. It was submitted that the word ‘transfer’, if it does not include appointment is inappropriate when used in the context of a transfer from a High Court to the Supreme Court because that is unquestionably an appointment which cannot, be made without consent of the person concerned. Proceeding further it was said that it is well recognised that use of different words does not necessarily produce a change in the meaning (sea Maxwell’s Interpretation of Statutes, 11th Edn.. pp. 286 239). Reliance was placed on State of Bombay v. Heman Alreja which decision was referred to with approval in Kesvananda Bharati’s case by Chandrachud J. (at p. 966). Attention was also invited to Edward Mills v. Ajmer. where this Court did not find any material difference between two expressions ‘existing law’ and ‘Law in force’, While defining the expression ‘actual service’ the word ‘transfer’ is used in the context of physical movement, that is, leaving one place and going to another place and the time spent in the process. But the expression ‘transfer’ is used in Article 222 to mean transfer from one High Court to another High Court, the person so transferred continuing to be a High Court Judge with continuity of service and there is no break. Undoubtedly the oath to which a Judge of the High Court must subscribe provided that ha takes oath as Judge on being appointed to a designated High Court and. therefore, on transfer when he goes to another High Court he has to subscribe to a fresh oath as being appointed to that High Court. But in service jurisprudence appointment by transfer is a well recognised concept involving continuity of office without break. Thus fresh oath does not imply that his appointment as High Court Judge comes to an end. What comes to an end is his appointment as a Judge of a particular High Court and not the holder of the constitutional office of High Court Judge and Article 217(1) provides for appointment of it High Court Judge and not Judge of a particular High Court. He continues to hold office even when transferred. But when he reaches the other High Court he subscribes to an oath to be a Judge of that High Court, not that he subscribes to an oath to be a Judge, The jurisdiction to function as a High Court Judge is not ambivalent but the Judge functions as a Judge of a particular High Court and enjoys the jurisdiction of a High Court judge in relation to the High Court to which he is thereby attached.
804. Same conclusion inevitably follows when viewed from another angle, Article 217(1) prescribes consultation with three constitutional functionaries before appointing a person as a High Court Judge while Article 222(1) obligates consultation only with Chief Justice of India while transferring a Judge from one High Court to another High Court, If transfer were to mean a fresh appointment and yet it can be carried out by mere recourse to Article 222(1), the only limitation on the power of the President while ordering transfer is to have consultation with the Chief Justice of India, while if the President is making an appointment of a High Court Judge within the contemplation of Article 217(1) the President is under a constitutional obligation to consult not only the Chief Justice of India but the Chief Justice of High Court to which appointment is being made as also the Governor of the State in which the High Court is situated, Mr. Seervai in this context urged that the two articles must be harmoniously construed and to achieve the harmonious construction he submitted that even though in the case of a transfer under Article 222(1) the Chief Justice of India is not bound to consult the Chief Justice of the High Court but normally it is his duty to do so as a responsible person and that Article 222(1) does not preclude such consultation. One cannot read into an article what is not prescribed because if consultation is obligatory it cannot be left to the discretion of the Chief Justice of India to consult someone as a responsible person. Maybe, that the field of consultation, i, e. the aspects to be taken into consideration in the process of consultation for Article 217(1) and Article 222(1) are different but the difference cannot be wished away by merely suggesting something as a matter of prudence. This is inherent evidence suggesting that transfer of High Court Judge does not mean a fresh appointment,
805. But the most insurmountable impediment I find in the suggested construction is that the court is not merely called upon to construe the word ‘transfer’ but re-write the Article in the name of construction, Is it permissible? Should the Judges constitute themselves a Constituent Assembly? To answer it in the affirmative would be a dangerous proposition. In fact, in this context the caution administered by Mr. Seervai himself in his Constitutional Law of India, 2nd Edn,, Vol. III, while, commenting upon the decision of this Court in Manohar v. Maruti Rao may be profitably referred to, He says at p, 1878 ‘that no doubt there to a limited sense in which hi interpreting the law the Judge may make law in the sense of adopting one of two or more alternatives, if such alternatives are open, or evolving a new principle to meet a new or unusual situation. But it is not given to him to write his own theories, likes and dislikes into the Constitution and the law.’ The further comment is that ‘the personal views of a Judge are irrelevant in the matter of interpretation of a constitutional provision,’ A further warning was administered that no scientific theory propounded in a book can form the basis of a Judgment, for it is opinion evidence, and such an evidence is admissible on condition that the scientific witness goes into the box and is crosseaxmined. The serious objection is to the Judge writing philosophical and social thesis. Now, interpretation of a constitutional provision is both an art and a science but while resorting to well-known cane one of construction unwittingly the pet theory that the independence of judiciary is prized so high that in order to achieve it if it becomes a compelling necessity the provision of a Constitution may be re-written, no canon of construction permits this to be done. We must always remember that we are called upon to construe the Constitution, the fundamental law of the land. No doubt a broad and liberal spirit should Inspire those whose duty it is to interpret it, but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errOrs. In re: The Central Province and Berar Act, 1938, 1939 FCR 18 at p. 37 : AIR R 1939 FC 1 at p. 4), The Constitution makers clearly envisaged a power to transfer a High Court Judge and conferred it on the President and howsoever we may disapprove this power we cannot wish this power away by re-writing the Article. There is no power in the Court to re-write the Article, Dr. Ambedkar who piloted the Constitution in his speach on November 25, 1949, on the motion that the Constitution as settled by the Constituent Assembly be passed, adopted the following observation with approval:
Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented, they can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another.
(Underlining mine) If we read the words ‘with consent’ not only the power of the President is totally taken away but the power is reallocated to the Judge who is to be transferred, namely, he cannot be ordered to be transferred but he can be requested, a request which can be finally turned down.
806. The suggested construction is contrary to jurisprudential concept of power. It was never disputed that Article 222(1) confers power on the President to transfer a Judge from one High Court to another High Court. The only limitation on the power is a prior consultation with the Chief Justice of India, Now, if the power to transfer vested in the President can only be exercised with the consent of the Judge who is to be transferred, does there remain any power in the President to discharge his constitutional function entrusted to him by Article 222(1)? When power is vested in a person or a constitutional functionary there ought to be the subject and object of power. Power is generally defined as ‘ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons. powers are classified either as public or private. Power is said to be public when it is vested in a person as an agent or instrument of the functions of the State. Amongst others, it contains executive authority.’ The correlative of power is liability. This connotes the presence of power vested in someone else, as against the person under liability. It is the position of one whose legal rights may be altered by the exercise of a power. Hope field describes power and disability as jural contradiction. Now, if the power is in the President, there is a liability as jural correlative in the Judge who can be transferred. And that power remains power if the liability can be imposed without consent. The moment the concept of consent is imported the power ceases to be power and becomes disability. It either becomes immunity or disability, more appropriately disability, in the sense of lack of power. (See for this discussion pages 229 and 230 of Salmond on Jurisprudence by Fitzgerald. 7th End.). Is it open to the Court by a process of interpretation to neutralise the power and thereby remove the disability which was constitutionally provided? I consider it impermissible and, therefore, also the contention that the Court should read the words ‘with his consent’ in Article 222(1). must be rejected.
807. What then is the check against arbitrary exercise of power conferred by Article 222(1) once the argument that it can only be exercised with the consent of the Judge to be transferred is rejected. This power to transfer a High Court Judge has rightly been described as an extra-ordinary power. The question then is, unless a positive check on its arbitrary exercise emanating from judiciary is found, this extra-ordinary power is likely to undermine independence of judiciary. It was said that the best check would be if this power can be hedged in with condition that it can only be exercised with the consent of the Judge, a submission which has not commended to me. Now, if this safeguard of reading consent in Article 222 is rejected, is there any other safeguard against arbitrary exercise of power? We were repeatedly reminded that this power was positively abused in 1976 when 16 Judges were transferred en masse and it is well recognised that what has been once done, if not restrained or checked, may be done again. In Mr. Sheth’s case the first safeguard against arbitrary exercise of power was found in the obligation cast on the President to consult the Chief Justice of India and, therefore, the parameters of consultation were drawn very wide so that the power may not be exercised to the detriment of the Judge for a collateral purpose. The second safeguard was found in reading into Article 222 that the power to transfer a High Court Judge can only be exercised in public interest, Chandrachud, J. held that the power to transfer a High Court Judge is conferred by the Constitution in public interest and not for purposes 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. At another place it was observed that if the power of the President who is to act on the advice of Council of Ministers to transfer a High Court Judge under Article 222(1) is strictly limited to cases in which the transfer becomes necessary in order to subserve public interest, in other words, if it be true that the President has no power to transfer a High Court Judge for reasons not being in public interest but arising out of whim, caprice or fancy of the executive, or its desire to bend a Judge to its own way of thinking, there is no possibility of any interference with the independence of judiciary if a Judge is transferred without his consent. The same view is shared by Krishna Iyer, J. in his concurring judgment. Therefore, the majority declined to read the words ‘with his consent in Article 222(1). The majority, therefore, concluded that non-consensual transfer is within the purview of Article 222(1). Even the minority does not question the view that the power to transfer a Judge can only be exercised in public interest.
808. The public interest like public policy is an unruly horse and is incapable of any precise definition and, therefore, it was urged that this safeguard is very vague and of doubtful utility. It was urged that these safeguards failed to checkmate the arbitrary exercise of power in 197G. This approach overlooks the fact that the Lakshman Resha drawn by the safeguards when transgressed or crossed, the judicial review will set at naught the mischief. True it is that it is almost next to impossible for individual Judge of a High Court to knock at the doors of the Courts because access to justice is via the insurmountable mountain of costs and expenses. This need not detain us because we have seen that in time of crisis the Bar has risen to the occasion twice over in near past though it must be conceded that judicial review is increasingly becoming the preserve of the high, mighty and the affluent. But the three safeguards, namely, full and effective consultation with the Chief Justice of India, and that the power to transfer can be exercised in public interest, and judicial review, would certainly insulate independence of judiciary against an attempt by the executive to control it.
809. There was a lively debate as to whether transfer of a Judge who has to some extent become obnoxious in a High Court would be in public interest, Chandrachud, J. observed that “experience shows that there are cases, though fortunately they are few and far between, in which the exigencies of administration necessitate the transfer of a judge from one High Court to another. The factious local atmosphere sometimes demands the drafting of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favourites and non-favourites. The voice of compassion is heard depending upon who articulates it. Though transfers in such cases arc preeminently in public interest, it will be impossible to achieve that purpose if a Judge cannot be transferred without his consent. His personal interest may lie in continuing a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that ‘the place of justice is a hallowed place'”. This approach mixes up two independent problems. While transfer in public interest is conducive to independence of judiciary, such power when exercised with a view to punishing a Judge becomes counter-productive. To punish a High Court Judge by an impermissible method is not in public interest, And if a judge is uprooted from one place because he has made himself obnoxious, the transfer itself may inflict punishment, In the whole controversy in this case this is the grey area and it is difficult to give precise answer either way.
810. Public interest is an expression Incapable of any precise definition nor what constitutes public interest is capable of specific enumeration. A negative definition was attempted by learned Attorney-General when he said that if a Judge is guilty of misbehaviour or is suffering from incapacity he ought to be removed and not transferred but if the Judge is not guilty of any misbehaviour but because of activities of some others has become ineffective his transfer could be said to be In public interest, One can visualise a situation when a judge having an expertise in some specialised branch of law may be required to be transferred to another High Court where it becomes necessary to strengthen that department, Transfer in such a situation would indisputably be in public interest. Unquestionably such transfer may cause some Inconvenience or hardship to the transferred Judge, but by no stretch of imagination it can be said to cast either a slur or that the order was passed with a view to punishing him. Such a situation in our vast country with number of High Courts can be easily envisaged. A transfer of this nature even if it involves to the Judge concerned some hardship, some inconvenience, some pecuniary loss, yet his outstanding merit which necessitated ‘his transfer for strengthening another High Court would far outweigh the personal considerations, If it is recognition of merit, the judge would himself hardly make any grievance about it To question such a transfer as not being in public interest by illustration that there are three Judges of same eminence in three High Courts, what basis can be adopted for the transfer of a Judge, is too hypothetical to need an answer. No rule can be framed to meet with such a situation. A threat of a resignation by such a judge is inconceivable. One can visualise a number of situations where a transfer can be in public Interest and when a transfer is effected in public interest and when questioned, the authority exercising the power of transfer must make good the claim of public interest. To say that public interest is not a sufficient safeguard is to deny what is being day in and day out done in Court, viz., that a certain action being in public interest is upheld.
811. But the serious and fairly difficult question is, whether a Judge can be transferred on account of complaints against him or on account of anything in his conduct or behaviour. Let us put the negative in the majority view in the forefront Chandrachud, J, has in most unequivocal terms stated that ‘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 (at p. 444) (of 1978-1 SCR) : (at p. 2339 of AIR 1977 SC), At another place he said that he has taken the view that a High Court Judge cannot be transferred as a matter of punishment as for example the views which he bona fide holds and that his transfer, being conditioned by the requirements of public interest, cannot be effected for an extraneous purpose (at p. 446) : (of 1978-1 SCR) : (at p. 2341 of AIR 1977 SC). Bhagwati, J. observed that it would be gross abuse of power to displace him from his High Court and transfer him to another High Court by way of punishment because he has decided cases against the Government, It is a power conferred on the President to be exercised in furtherance of public interest and not by way of victimisation for inconvenient decisions given by a High Court Judge (at p. 460) (of SCR) I (at p, 2352 of AIR). Krishna Iyer, J. in this context has observed that ‘the nature of Judicial process is such that under coercive winds the flame of justice flickers, faints and fades, The still small voice is smoothened by subjective tribulations and anxieties and, if coerced, trembles to objectify law and justice. The true Judge is one whose soul is beyond purchase by threat or temptation, popularity or prospects’. At another stage it is observed that ‘environmental protection of the judicial echelons from executive influence, by transfer or other deterrent, is in public interest’. Coupled with this is the view expressed that ‘considering the great in convenience, hardship and possibly a slur which transfer from one High Court to another Involves the better view would be to leave the Judges untouched and take other measures to achieve the purpose pleaded, namely, national integration’. Transfer thus casts slur. If, therefore, a Judge is transferred because he is involved in local factious atmosphere or has a circle of favourites’ and disfavourites it would be obviously by way of punishment and would cast a slur and stigmatise the Judge. Mr. Seervai pointed out that while conceding in the majority view that transfer involves a slur, the illustrations given by Chandrachud, J., clearly show that transfer in such situations would be by way of punishment, Power conferred by Article 222(1), frankly, cannot, be exercised with a view to punishing the Judge. It can only be exercised in public interest for achieving some larger public good, But it was urged that if a Judge is not guilty of high misdemeanour sufficient to impeach him but behaves in a manner which brings administration of justice into disrepute a transfer which with a view to uprooting him from an atmosphere in which he has become inconvenient, would be to the good of that judge and in the interest of purity of administration of justice and such a transfer cannot be said to cast a slur or stigma on the Judge concerned. On an earlier occasion this view appeal to me. In my Judgment in Mr. Sheth’s case (1076) 17 Guj LR 1017, I observed in this behalf as under: I specifically asked Mr. Seervai, taking cue from his Sir Chimanlal Setalvad Lecture titled “Tipping the Scales’ where he refers to ‘reigning favourite’ that there is a judge in the High Court He is a very competent judge. But he has developed certain local angularities which have vitiated the Court’s atmosphere. He is a good judge and the drawback is not so grave to call for his impeachments what was required was to free him from local peculiar undesirable influence. Would not his transfer solve the problem to the satisfaction of all. He was asked whether he would not mind being transferred. He candidly said ‘no’. How is the problem to be solved? Transfer of such a Judge is in public interest, cannot be gainsaid. He is not willing to be transferred and he would not give his consent, If the power to transfer is further limited by reading into Article 222 the words “with his consent’ by process of interpretation, Article 222 becomes a constitutional deadwood. He cannot be transferred. He cannot be continued at that place, and there is no tangible sufficient proof for impleachment, Law Commission in its Fourteenth Report, Vol. I, p. 99 rejected a transferable cadre of High Court Judges. But Mr. Seervai in his lecture observed that the Commission did not consider separately whether the power to transfer a Judge would not in the last resort be used as a remedy for an admitted evil (p. 118), Then there must be power in some one to transfer the Judge albeit ‘without his consent. And if we read down the Article as suggested there is no way out. Mr. Seervai said that the resultant situation is that there are two public interests in the field and they appear to be in conflict with each other, to wit (i) transfer of a Judge without his consent by a litigant, namely, executive would undermine judicial independence which is a cardinal feature of the Constitution; and (ii) image of dame justice would be tarnished unless the Judge is transferred so as to save him from the undesirable environmental influence affecting his integrity. The answer is that the Court, in such a situation, must determine the dominant public interest and give precedence to it over the conflicting subservient interest which must give way, Said Mr. Seervai, tolerate the situation rather than undermine judicial independence by compulsory transfer by the Executive. It often happens that the principles when pushed to logical end lead to two irreconcilable positions. In such a conflict choice has to be made. Cardozo in his Nature of Judicial Process (pp. 40-41) vividly describes this conflict by saying that force of logic of one should prevail over the other and the choice is made by the judicial mind born of its conviction that the one to be selected would lead to justice. In the end, the principle which is thought to be most fundamental to represent the larger and deeper social interests must put its competitors to fight. Approaching from this angle, he said, if you cannot impeach the judge, tolerate but you cannot transfer him without his consent because that would impinge upon the higher public interest, namely, independence of judiciary and would nullify the cardinal feature of the Constitution.
But on deeper thinking I believe that selective transfer of individual Judge for something improper in his behaviour or conduct would certainly cast a slur or attach a stigma and would leave such indelible mark on the character of the Judge that even in the High Court to which he is transferred he would be shunned and the consumers of justice would have little or no faith in his Judicial integrity. This is an inevitable outcome of selective transfer on the ground of some improper streak in the conduct or behaviour of the Judge. It is true that the procedure for impeachment is rather very cumbersome and it ought to be so because the ultimate power to impeach rests with the Parliament, And in a Parliamentary democracy the executive which controls a majority in Parliament would be able to carry out the threat of Impeachment It may be, as was urged, that the Judge may behave in an impeccable manner but there are others functioning in the Court who would render judge’s task of judicial justice impossible. I fail to see how transfer of such a weak and indecisive Judge unable to control his relations, friends or associates would be better of by transfer. Society would dub him a weak and imbecile Judge. One thing is, therefore, certain that the power conferred by Article 222(1) cannot be exercised with a view to punishing the Judge for anything improper in his behaviour or conduct. What a deep resentment and consequential character assassination a High Court Judge suffers by such selective transfer can be gauged from the reaction of Shri M.M. Ismail. former Chief Justice of Madras High Court who resigned only because according to him the transfer was by way of punishment and casts stigma on his judicial poise and bearing. Law Minister in his highly controversial circular dated March 18. 1981, has stated that ‘to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations’, some fresh steps are required to be taken. Transfer to achieve such objects may apparently be in public interest. Therefore, whenever the transfer answers to some objective norms even if it causes personal inconvenience and hardship, it can be said to be in public interest But the transfer of a judge not answering to any objective norms but selectively made and founded upon complaints and grievances relatable to the conduct or behaviour of the judge would certainly cast stigma or slur and would be by way of punishment and that cannot be inflicted by exercise of power under Article 222(1). It transfer can be effected because there are complaints and grievances against a Judge of a High Court on account of his behaviour or conduct it would permit the executive after going through the process of consultation to rotate inconvenient Judges and this rotation causes such character assassination on one hand and hardship and inconvenience on the other that it will be sufficient to drive out even a strong willed Judge. Therefore, a transfer on account of any complaint or grievance against a Judge referable to his conduct or behaviour is impermissible in exercise of powers under Article 222(1).
812. One more submission may be examined here. It was contended that upon a true construction of Article 222(1), a proposal for transfer cannot be initiated by the Chief Justice of India, it can only be initiated by the President because the Chief Justice of India is the ‘consultee’. The power of transfer is conferred on the President and it can be exercised after consultation with the Chief Justice of India. Chief Justice of India is thus the constitutional functionary to be consulted. Would initiation of a proposal for transfer emanating from the Chief Justice of India, a constitutional functionary required to be consulted, by itself vitiate the proposal? In other words, can it be said that Article 222(1) envisages proposal for transfer to be initiated by the President alone and after due deliberation and consultation with the Chief Justice of India the proposal can be carried out if deemed, proper or be dropped? Undoubtedly the power is in the President to transfer and as a pre-condition the Chief Justice is required to be consulted. But on that account alone it cannot be said that the Chief Justice of India cannot initiate the proposal. Where power to do a thing is vested in a certain constitutional functionary it is immaterial who draws the attention of the constitutional functionary, the repository of power, for exercise of the same. If the power is exercised after fulfilling all the pre-conditions, the mere fact that somebody invited the repository of power to exercise power which may tantamount to saying that someone initiated the proposal for exercise of the power, such initiation of proposal would not be unconstitutional or contrary to the constitutional mandate. The only caution that must be required to be administered is and it has assumed importance in this case, that if Chief Justice of India who is the authority to be consulted in respect of a proposal for transfer himself becomes the initiator of the proposal, the whole process of consultation must move in such a manner as to ensure that the President who is invited to exercise the power at the instance of the Chief Justice of India has to apprise himself of all relevant considerations and has to fully inform himself of all the aspects of the matter and then the power is to be exercised. When in Mr. Sheth’s case ) it was said that while consulting the Chief Justice of India the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion, the process would have to be reversed when the Chief Justice of India is the initiator of the proposal for transfer. It would be the constitutional obligation of the Chief Justice of India to place all relevant data and, material having an impact on the final verdict before the President and the President in his turn must apprise himself of all the relevant considerations. If there are either grey or blurred areas, it would be the constitutional obligation of the President to call for necessary information from the Chief Justice of India who being the initiator of the proposal must have considered all of them and having brought to bear upon the subject his mature consideration must have initiated the proposal and after all the relevant data thus supplied, including the missing links, if any, as required by the President, the President may either exercise the power or on mature consideration may decline to exercise the power. Collection of relevant material, public interest involved, and the decision recommending transfer must precede the proposal and the same must accompany the proposal. A bald proposal unaccompanied by relevant material and the reasons for proposing transfer and total absence of public interest sought to be served by the proposal would certainly not satisfy the constitutional mandate of Article 222(1). The fulfillment of the constitutional obligation in this background would be on the Chief Justice of India and the performance by the President, of his duty to elicit all facts which are necessary to arrive at an appropriate conclusion are parts of the same process and are complementary to each other. But with this precaution, who initiates the proposal is irrelevant. In this context, however, my attention was drawn to a passage in my judgment in Gujarat High Court in Mr. Sheth’s case 1976-17 Guj LR 1017 which gives an impression that the President alone can initiate the proposal. In paragraph 140 it is staled that ‘it is not for a moment suggested that the proposal for transfer must emanate from the Chief Justice. That is not expected and it is bound to emanate from the President. The process for inception of the proposal is not to be reversed. Such a thing may also be open to objection and the reason is apparent’. At first blush this passage gives an impression that upon its true construction Article 222(1) precludes anyone except the President of India to initiate the proposal for transfer and that in any case the Chief Justice of India cannot initiate the proposal. The observation was in the context of a submission that exercise of power of transfer by the executive would be subversive of independence of judiciary and that in order to eliminate arbitrary exercise of power conferred on the President the Court must so construe Article 222(1) that the proposal for transfer must originate with the Chief Justice of India. The submission presently examined is exactly the converse but answering the submission before the High Court it was observed that in order to ensure independence of judiciary it is not obligatory that a proposal for transfer must emanate from the Chief Justice of India. The passage, therefore, must be read in this light.
813. Summing up the discussion, following propositions emerge both on principle and authority. While testing the validity or otherwise of an order of transfer of a High Court Judge made by the President in exercise of the power conferred by Article 222(1), below mentioned tests will have to be applied:
(i) power to transfer a Judge of High Court is conferred on the President which as part of the executive function of the President he would, in view of Article 74, discharge according to the aid and advice received by him from the Council of Ministers:
(ii) the power to transfer a High Court Judge thus is in the executive which is the litigant in a very large number of cases coming before a Judge of a High Court;
(iii) the power to transfer a High Court Judge is extraordinary power;
(iv) the limitation on the exercise of power is full, effective and meaningful consultation with the Chief Justice of India;
(v) the power to transfer can be exercised only in public interest and not according to the whim, caprice or fancy of the executive or to remove an inconvenient judge not toeing its line;
(vi) the consultation to be effective must be focussed upon very personal factors as the family problems of the judge, which include the position of his wife and children and parents, the reasons for transfer whether the transfer is actuated on account of anything in the conduct or behaviour of the judge, whether the injury, inconvenience and difficulties experienced by the judge consequent upon his transfer are such as to be inconsequential in view of the larger public interest for which the transfer is being ordered;
(vii) would the transfer cast a shir or stigma on the judge proposed to be transferred;
(viii) the policy universally followed till 1976 of not transferring a judge of High Court without his consent is being shelved for achieving some larger public interest or the so-called public interest is a cloak or device to strike at an inconvenient judge;
(ix) is the transfer intended to inflict punishment for misbehaviour not of adequate magnitude to invoke proceedings analogous to impeachment as contemplated by Article 124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968.
814. The allegations made and countered in this group of petitions may be examined on the touchstone of aforementioned well settled propositions so as to reach an affirmative conclusion one way or the other, whether the order dated January 19, 1981, transferring Shri K.B. N. Singh, Chief Justice of Patna as Chief Justice, Madras, is constitutionally valid or otherwise.
815. Factual averments are set out in petitions as well as numerous affidavits filed in the course of hearing of these petitions, Two important affidavits are of Shri K.B. N. Singh, dated Sept., 16, 1981, and counter affidavit of the Chief Justice of India dated Sep. 29, 1981, Shri K.B. N. Singh filed on October 16, 11981, an affidavit in reply to the affidavit of the Chief Justice of India. It is rather unfortunate that there is divergence between the affidavits of Shri Singh and the affidavit of the Chief Justice of India but the painful and agonising task of searching where the truth lies is spared by the stand taken by Shri Singh’s learned Counsel, Dr. Singhvi, that he would not refer to any, divergence between these affidavits and base his submissions on the points on which they converge. The only difficulty we experienced is that in the course of discussion some queries emerged and had to be left at that stage because Mr. Para-saran, learned Solicitor-General to whom we addressed our queries, frankly confessed his inability to help because he did not appear for the Chief Justice of India. In Mr. Sheth’s case the Chief Justice of India appeared through counsel but did not file his affidavit, In this case Chief Justice of India filed his affidavit but did not appear through counsel to assist the Court. We are, therefore, left to fend for ourselves. But let it be made distinctly clear that the affidavit of Chief of India would be looked upon an setting out the truth, and is entitled to undiluted respect befitting the dignity of his office.
816. Shri K.B. N. Singh has filed as many as four affidavits. It is not necessary to recapitulate the averments in these affidavits, The broad allegations which have a bearing on the issues under discussion may be briefly stated.
817. In his first affidavit dated September 7, 1981, the only averment worth referring to is that he had not at any time consented to his transfer to Madras and that no reasons, ground, questions or materials necessitating or justifying his transfer from Patna to Madras were ever disclosed to him or discussed with him by the President of India or the Government of India or by the Chief Justice of India. He also states that it was not possible for him to give consent to his transfer on account of a compelling personal problem, namely, that his mother of advanced age is staying with him and she is seriously ailing and bed-ridden for over two years and who is not in a position to be moved out of Patna without risk to her life and he is not in a position to leave her alone. Coupled with this affidavit there was a request that from the array of respondents he may be transposed as petitioner 3, which request was granted.
818. Consequent upon transposition of Shri K.B. N. Singh as petitioner 3, den tailed amendments to the petition preferred by two advocates, would have been inevitable. With a view to avoiding the same, Shri K.N. B. Stash was given liberty to file a detailed affidavit setting out therein all his contentions. Pursuant to this liberty reserved in his favour he has filed a detailed affidavit dated September 16, 1981, inter alia, contending that in February 1980, the Chief Justice of India visited Patna for inaugurating International Rotary Conference. The fact that such a conference was held on 23rd & 24th Feb., 1980 and that it was inaugurated by the Chief Justice of India is not disputed but what is controverted is that the visit was not specifically for the purpose of inaugurating the Conference but it was an official visit incidental to which the invitation to inaugurate the conference was accepted. Shri Singh then proceeds to state that during this visit the Chief Justice of India did not give him any inkling of a proposal to transfer him. This is admitted by the Chief Justice of India saying that at that time no proposal for transfer of Shri Singh was even mooted and, therefore, there was no question of giving him any inkling in this behalf. Shri Singh then proceeds to state that on January 5, 1981, for the first time he received a telephonic message from the Chief Justice of India that as Shri M.M. Ismail, the then Chief Justice of Madras was proposed to be transferred to Kerala, in the consequential vacancy in the office of Chief Justice, Madras, Shri Singh was proposed to be, transferred, Shri Singh enquired why he was being transferred to Madras and the Chief Justice of India said that it was ‘Government policy’. The fact that there was such a telephonic conversation between Shri Singh and the Chief Justice of India on January 5, 1981, is admitted and also that during this conversation there was reference to ‘Government policy’ bearing on the question of transfer was also referred to. What is disputed is that for the proposed transfer ‘Government policy’ was not the only reason given by Chief Justice of India and the Chief Justice of India in his counter-affidavit has stated that over and above referring to Government policy, Shri Singh’ was Informed that it was proposed to transfer Chief Justice M.M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place. Shri Singh then asserts that he informed the Chief Justice of India that his mother who lives with him was seriously ill and bed-ridden and was not In a position to be moved from Patna without risk to her life. This is admitted. The additional averment of Shri Singh that fee also stated certain other compelling and personal circumstances and difficulties was disputed and denied. Undoubtedly the further averment of Shri Singh that despite all these difficulties, If his transfer is insisted upon he might be compelled to resign and such a statement having been made by him in the telephonic conversation is admitted by the Chief Justice of India. Shri Singh was also informed that the Chief Justice of India has taken note of the difficulties mentioned by him and that it would be taken into consideration before a final decision was taken. The Chief Justice of India also requested Shri Singh during this conversation to come over to Delhi to discuss the question of his transfer, Shri Singh further avers that he reached Delhi three or four days after this telephonic conversation and according to Chief Justice of India Shri Singh came to Delhi on Jan., 8, 1981, and met him at his residence. There is some divergence on the question as to the duration of time for which Shri Singh was with the Chief Justice of India. According to Shri Singh he was with Chief Justice of India for 10 to 15 minutes while according to Chief Justice of India he was with him for a period much longer than 10 to 15 minutes. During this discussion according to Shri Singh the Chief Justice of India was non-committal in the matter of Shri Singh’s transfer. Shri Singh proceeded to tell the Chief Justice of India during this conversation at the residence of the latter that it was possible that baseless complaints which are the bane of Bihar might have been made to him and if so, he would like to remove any wrong impression that might have been created. Even after this suggestion, according to Shri Singh, the Chief Justice of India did not put any question or material to him which necessitated or justified his transfer, The version given by the Chief Justice of India in his counter-affidavit is that the question of Shri Singh’s mother’s illness was discussed and the Chief Justice of India disclosed his inability to agree with Shri Singh that there were ho other dependable persons in his family who could look after his mother and it was pointed out that Shri S.B. N. Singh, the brother of Shri Singh who was a practising advocate in the Patna High Court was quite capable of looking after the mother. The Chief Justice of India admits that during this Discussion Shri Singh pointed out that is was possible that some baseless complaints may have been made to him (Chief Justice of India) and that he (Shri Singh) would like to remove any wrong impression which those complaints may have created. On this reference being made by Shri Singh the Chief Justice of India told him that he did not go by baseless complaints, that he did not believe that his (Shri Singh’s) conduct was blameworthy, but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of the High Court he was free to do so. The Chief Justice of India further states that during this conversation Shri Singh told him how certain persons connected with the High Court were influenced by communal considerations and how he, on his own part, did not permit communal or any other extraneous considerations to influence him administratively or judicially. The Chief Justice of India further states that he (Chief Justice of India) assured Shri Singh that he did not hold that he (Shri Singh) himself was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Number of grounds have been stated by Shri Singh in this affidavit but those of which notice may be taken are that the transfer is without consent which according to him is impermissible, and that the consultation was not full, effective and meaningful in that the relevant considerations were not taken into account, no verification of facts was made and there was no relevant consideration for coming to a fair and considered conclusion that such a transfer would be in public interest. One additional ground is that the impugned order of transfer is punitive in character. Further, the transfer caused injury and the injury is inflicted without following the principles of natural justice, and the transfer is not shown to be in public interest.
819. Chief Justice of India filed his counter affidavit dated Sept, 29, 1981. Shri Singh filed reply to the counter-affidavit on Oct., 16 1981. In between there are two affidavits, one of Shri K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, being counter-affidavit on behalf of the Union of India, and the other by Shri T.N. Chaturvedi, Secretary, Department of Justice, Government of India, specifically claiming privilege against disclosure of certain documents called for by Shri Singh.
820. By an order made by this Court, the Union of India was called upon to disclose all relevant documents, nothings, etc. bearing on the question of transfer of Sri K.B. N. Singh. Pursuant to this order a file was submitted to this Court containing the correspondence between the Chief Justice of India and the Law Minister, Chief Justice of India and the Prime Minister, and a letter from Shri M.G. Ramchandran Chief Minister of Tamil Nadu to Law Minister.
821. The evidence furnished by the correspondence may have to be evaluated, appreciated, analysed and examined along with the averments made in various affidavits. The correspondence has to be read in juxtaposition with the averments in the affidavits so that the clear picture of fact situation may emerge which may assist in disposing of the contentions raised by Shri Singh.
822. The Chief Justice of India wrote to the Law Minister on December 7, 1980. This is a fairly long letter, part of which refers to filling in the vacancies in the Supreme Court which may be ignored as being wholly irrelevant for the present purpose. The next subject discussed is confirmation of Acting Chief Justices one of whom is Shri K.D. Sharma, then Acting Chief Justice of Rajasthan High Court and the recommendation is that he should be confirmed. There is a reference to Justice Mufti Bahauddin Farooqi, then Acting Chief Justice of Jammu and Kashmir. The recommendation bearing on the question of confirmation of Justice Farooqi as Chief Justice is not relevant but as we are dealing with the transfer and as the proposal has emanated from the Chief Justice of India, what were the relevant considerations present to the mind of the Chief Justice of India on the question of transfer have a vital bearing on the final outcome and, therefore, that part of the letter which recites a recommendation for transfer of Justice Farooqi can be taken into account. This is being referred to for a very limited purpose as to the overall view of the letter, the approach of the Chief Justice of India, the permeating flavour in the letter that the transfer is consequent upon some inquiries in respect of complaints against various Chief Justices and this has a vital bearing on the topic of transfer. Viewed from this angle, the statement in this letter that several complaints have been received against Mr. Farooqi, some of which, on verification, seem well-founded, has a direct nexus to the recommendation that Mr. Justice Farooqi, then Acting Chief Justice of Jammu and Kashmir should be transferred as a puisne Judge of the Punjab and Haryana High Court. As would be pointed out later, indisputably the transfer was a direct consequence of complaints found well-founded on verification and, therefore, the transfer was directly and Irrevocably related to the conduct of Justice Farooqi.
823. The Chief Justice of India then proceeds to state in unmistakable terms as under which is very relevant:
Though I am firmly opposed to a wholesale transfer of the Chief Justices of the 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. The transfer of some of the Chief Justices has been engaging my attention for the past few months. I have made personal inquiries in this behalf and have met several lawyers and many judges of the concerned High Courts. On the basis of the data which I have collected and which I have considered with the greatest objectivity, I am of the opinion that the following transfers may be made.
Proceeding further in the letter the Chief Justice of India recommends transfer of Shri K.D. Sharma, Acting Chief Justice of Rajasthan as Chief Justice of Kerala consequent upon the vacancy caused in the office of Chief Justice of Kerala by elevation of the then incumbent of office to the Supreme Court of India. In the vacancy caused by the transfer of Shri K.D. Sharma in the Rajasthan High Court, the recommendation was that Shri K.B. N. Singh, Chief Justice of Patna High Court be transferred and posted as Chief Justice of Rajasthan High Court and Shri Syed Sarwar Ali, senior-most puisne Judge of the Patna High Court should be appointed as Acting Chief Justice of Patna High Court. On the transfer of Shri Farooqi, Acting Chief Justice of Jammu and Kashmir High Court, Mr. Justice Mohammad Hamid Hussain of the Allahabad High Court was to be promoted and posted as Chief Justice of Jammu and Kashmir High Court. Then follows a paragraph which must be extracted:
That leaves for consideration the question of appointment of permanent Chief Justice of the Allahabad High Court. I am fairly satisfied that Chief Justice Satish Chandra should be transferred from the High Court of Allahabad, but I do not want to express any final opinion on this question until I ascertain for myself the state of affairs in Allahabad. For that purpose I will be going to Allahabad on December, 31. During my three days’ stay at Allahabad, I will be meeting various members of the Allahabad Bar as also the Judges of that High Court. In case I advise the transfer of Justice Satish Chandra, he can be appointed as the Chief Justice of the Patna High Court. That will create a vacancy in the office of the Chief Justice of the Allahabad High Court for which a suitable recommendation can be made later. Justice Satish Chandra’s transfer to Patna, in case it is necessary, may be made any time after January 15, 1981”. This letter thus involves the transfer of Acting Chief Justice Mr. Farooqi, Mr. Justice M.H. Hussain, Acting Chief Justice Mr. K.D. Sharma, Chief Justice Mr. K.B. N. Singh and a near certain transfer of Chief Justice Mr. Statish Chandra.
824. Leaving aside others, one incontrovertible fact may be noticed here that prior to December 7, 1980, when a firm proposal was made for transfer of Shri K.B. N. Singh from Patna to Rajasthan High Court, there was neither a whisper or discussion between Chief Justice of India and Shri Singh concerning his transfer. The proposal to transfer Shri Singh is a firm proposal not a tentative one because the tentative suggestion couched in a different language is in respect of Shri Satish Chandra, Chief Justice of Allahabad. As far as Shri K.D. Sharma, Acting Chief Justice of Rajasthan, Shri K.B. N. Singh, Chief Justice of Patna, Shri Farooqi, Acting Chief Justice of Jammu and Kashmir, and Shri M.H. Hussain, Judge of Allahabad High Court, are concerned, there was a firm proposal and it would mean that before making such a firm proposal the Chief Justice of India must have taken all aspects bearing on the question of transfer into consideration because transfer of such high constitutional functionaries as Judge or a Chief Justice of a High Court is to be made after collecting relevant material, cool deliberation, mature consideration and as an absolute necessity. If the proposal to transfer Shri Singh was thus a firm proposal which if the President had accepted without further question as it was coming from the highest in the judiciary, the Chief Justice of India, and Shri Singh was transferred, ex facie the validity of the transfer would be open to serious question in view of the ratio in Mr. Sheth’s case, Within 24 hours before the ink was dry on the first letter the Chief Justice of India, whose attention was drawn to a serious error in proposing transfer of Acting Chief Justice K.D. Sharma from Rajasthan to Kerala High Court by telephonic conversation, immediately went back on the proposal. It transpires from the correspondence that the Law Minister drew the attention of the Chief Justice of India that if Shri K.D. Sharma, Acting Chief Justice of Rajasthan was transferred as Chief Justice of Kerala High Court, he would become Chief Justice over six Judges of Kerala High Court who were senior to him by length. It was pointed out that Shri Sharma was inducted as a Judge of the Rajasthan High Court in 1973 while the seniormost puisne Judge in Kerala High Court Shri P. Subramonia Poti was inducted in the High Court in 1969 and that there were five other Judges along with Mr. Poti who were inducted into the High Court prior to 1973. If the proposal of the Chief Justice of India was implemented, a fairly junior Judge would become Chief Justice over his seniors, a thing which would be seriously resented as the imposition would be utterly unjustified, destroying ruthlessly the natural expectations of Judges who had accepted High Court judgeship between 1969 and 1973. It appears this very relevant aspect was completely overlooked while making the recommendation for the transfer of Shri K.D. Sharma to Kerala High Court, This faux pau on being brought to the notice of the Chief Justice of India was rightly accepted saying that the Chief Justice of India “did not realise that as many as six Judges of the Kerala High Court are senior to Justice K.D. Sharma and that makes it necessary to think about the matter afresh”, and, therefore, by letter dated December 8, 1980, the proposal to transfer Shri K.D. Sharma as Chief Justice of Kerala was cancelled and in supersession of that proposal a fresh proposal was submitted that Shri K.D. Sharma be transferred to Sikkim and Shri M.M. S. Gujral, the then Chief Justice of Sikkim be transferred as Chief Justice, Kerala Even Mr. Gujral was inducted as a High Court Judge five months later than Mr. Poti, This fact was not considered important enough in making the proposal, The other proposals contained is the letter dated December 7, 1980, were -reaffirmed which would imply that Shri K.B. N. Singh’s proposed transfer from Patna to Rajasthan High Court was to be ordered.
825. The next letter dated December 18, 1980, by Chief Justice of India to Law Minister reveals one more fact that before the letter dated December 8, 1980, intimating the cancellation of proposal of transfer of Shri K.D. Sharma to Kerala High Court reached appropriate quarters, the proposal was already processed to the Prime Minister who appears to have approved the same and this becomes evident from a recital in the letter dated December 18, 1980, that having communicated one proposal to the Prime Minister in regard to the appointment of Kerala Chief Justice (Shri K.D. Sharma) consequent upon the impending elevation of the then Chief Justice to Supreme Court, it was somewhat awkward to withdraw that proposal especially since the Prime Minister was inclined to agree to that proposal.
826. Possibly with a view to apprising the Prime Minister as to the circumstances necessitating withdrawal of the proposal, on the same day a letter was addressed by the Chief Justice of India to the Prime Minister in which it was stated that while recommending transfer of Shri K.D. Sharma as Chief Justice of Kerala High Court he had overlooked that Justice K.D. Sharma is junior to as many as six Judges of the Kerala High Court and, therefore, his transfer to that High Court was bound to invite a great amount of public criticism and it would also create administrative problems in the way of Justice Sharma himself. One other aspect in this letter worth noticing is that the Chief Justice of India informed the Prime Minister that he was trying to explore the possibility of recommending the appointment of the senior-most puisne Judge of the Karnataka High Court, Shri K. Bhimiah, as Chief Justice of Kerala High Court, In the penultimate paragraph of the letter the Chief Justice of India reiterates that the other proposals, for example, the proposal of transfer of Shri K.D. Sharma, Acting Chief Justice of Rajasthan High Court to Sikkim and the transfer of Shri K.B. N. Singh, Chief Justice of Patna High Court to Rajasthan High Court may await further consideration. The underlined portion of the letter extracted herein would show that the proposal to transfer Shri K.B. N. Singh to Rajasthan was likely to be reviewed and reconsidered and, therefore, the proposal itself may become tentative, But the next letter to which presently a reference would be made would show that the transfer of Shri K.B. N, Singh was certain, only the station may be reconsidered.
827. The Chief Justice of India wrote to the Law Minister on December 20, 1980, that is, two days after the letter to the Prime Minister that having given the matter his most anxious consideration, he proposed, in supersession of the previous proposals made by him, that Shri M.M. Ismail, Chief Justice of Madras High Court should be appointed as the Chief Justice of the Kerala High Court and in the consequential vacancy caused in the office of Chief Justice of Madras High Court Shri K.B.N. Singh, Chief Justice of Patna be transferred as Chief Justice of Madras. A further proposal was that Shri Syed Sarwar Ali, seniormost puisne Judge in the Patna High Court should be appointed as Acting Chief Justice of the Patna High Court. There ends the correspondence.
828. The correspondence bearing on the question of transfer of Shri K.B.N. Singh, commencing from Dec., 7, 1980 and ending with the letter dated December 20, 1980, has been disclosed. There is no contemporaneous written evidence bearing on this topic either in the form of memorandum or notings. This becomes explicit from the following paragraph in the statement made on behalf of Union of India by the learned Solicitor-General on Nov. 12, 1981, Relevant paragraph in the statement reads as under:
Except the material brought on record by the various affidavits filed on behalf of the Government of India in the easel, the correspondence already disclosed and the notings submitted to this Hon’ble Court with a claim of privilege, there are no minutes recorded as to any conversation between the Chief Justice of India and the Union of India. No other data is available except what is in the above records.
(Underlining mine)
829. Affidavits refer to telephonic conversation of Chief Justice of India with Mr. Singh on January 5, 1981, and the meeting between the two on January 8, 1981. File of noting was shown to the Court, Dr. Singhvi submitted that if there is any relevant material bearing on the question of transfer of Shri Singh it must be disclosed and consistent with our order for disclosure we would have been duty bound to disclose it, The fact that after perusing the file we did not direct disclosure permits the irresistible inference that the notings did not contain any relevant material. Therefore a fortiori it follows that except the correspondence disclosed there is no contemporaneous written record; nor notings of minutes of telephonic communication relevant to transfer of Shri Singh, And it would be imprudent to hold that such serious issue with forebodings of resignation is left to oral discussion between two high constitutional functionaries to be conjured up by tapping memory as to what transpired. Such an approach would expose high constitutional functionary like Chief Justice of a High Court without remedy, reprieve and relief,
830. Disclosed correspondence thus being the only source of what happened during two weeks commencing from December 7, 1980, and ending with the letter dated December 20, 1980, has to be minutely albeit dispassionately and objectively scanned, During the fateful period five Chief Justices and one puisne Judge were proposed to be transferred. They include Chief Justices K.D. Sharma (Rajasthan), K.B. N. Singh (Patna), M.M. S. Gujral (Sikkim), Acting Chief Justice Farooqi (J&K), Chief Justice M.M. Ismail (Madras) and Justice M.H. Hussain, a puisne Judge of the Allahabad High Court who was to be promoted, transferred and posted as Chief Justice, Jammu and Kashmir. And notice the rotational movement. Shri Sharma was first proposed to be moved from Jodhpur to Ernakulam, i. e. Rajasthan to Kerala, from the Hindi speaking belt to an area where Hindi is hardly welcome. Shri Gujral moves from Sikkim to Ernakulam, that is, from Sikkimese to Malayalam and from- extreme north to down South. Within 24 hours the wheel turned almost 180 degrees when Shri Sharma instead of going to extreme south, i.e. Ernakulam in Kerala, is pushed to extreme north, Sikkim in the foothills of Himalayas. Shri Singh is first proposed to be sent from Patna to Jodhpur, Rajasthan, both in Hindi speaking belt and then actually shifted to Madras, Hindi to Tamil, seriously objected to by Mr. M.G. Ramchandran, Chief Minister of Tamil Nadu, Shri Ismail moved from Madras to Kerala not very far away though from Tamil to Malayalam language area. Shri Farooqi who was first in Kashmir, then sent to Allahabad, brought back to Kashmir, is proposed to be demoted and sent to Chandigarh. Shri Mohammad Hamid Hussain moves from Allahabad to Jammu and Kashmir. The chequered history of this rotational movement spreading over hardly 13 days would hardly satisfy the rigorous test of a mature, objective, dispassionate consideration of the various factors involved in the transfer. This is all the more so because as it will be pointed out a little while later that the Government of India possibly out of deference to Chief Justice of India, which ought to be the right attitude, had simply abdicated itself and accepted the proposals not for the reasons for which they were made but for entirely contrary and opposite reasons.
831. Transfer of Shri Singh is sought to be sustained on the ground that it is not by way of punishment nor on account of misbehaviour or objectionable conduct on his part nor with a view to casting a stigma on him but in larger public interest, namely, that he being an experienced senior Chief Justice, such a person was required to man a premier High Court like the Madras High Court. Does the correspondence bear out this submission?
832. The letter dated December 7, 1980, read as a whole, piecemeal or line wise hardly indicates that Shri Singh was proposed to be transferred because he was the senior experienced man and a premier High Court like the Madras High Court would require a senior experienced person. All High Courts are of equal importance, save that some High Courts have a span of more than a century and others were formed after the independence. When the submission that transfer of Shri Singh was not in public interest is considered, it would be pointed out that when transfer was first mooted, there was not even a remote possibility of Madras High Court requiring a senior experienced Judge.
833. With this background, if the letter dated December 7, 1980, is read as a whole, an indelible impression is formed on the mind that the governing consideration for recommending transfers was that one or the other Chief Justice had made himself obnoxious on account of complaints against him. Mr. Justice Farooqi’s case is an instance in point and it is incontrovertible that in his case it was proposed that he be demoted and transferred from Jammu and Kashmir to Chandigarh because several complaints had been received against him some of which on verification seem well founded. And this is the undertone of the whole letter because it is with reference to Justice Farooqui that the proposals for transfer commenced in the letter. And this is reinforced when one reads the case of Shri Satish Chandra, Chief Justice of Allahabad because it a suggested by the Chief Justice of India that he is fairly satisfied that Shri Satish Chandra should be transferred but that he will formulate the proposal by reaching a decision after a visit to Allahabad when he proposed to meet various members of the Allahabad Bar as also Judges of the High Court to ascertain the state ,of affairs in Allahabad. If Shri Satish Chandra is the senior experienced Chief Justice, that aspect is not to be collected by a visit to Allahabad. If some other public interest requires transfer of Shri Satish Chandra, a visit to Allahabad would hardly be enlightening. If the state of affairs at Allahabad is required to be ascertained a visit is inevitable. That such a visit was in contemplation is clearly stated and during this visit what was contemplated to be done was a meeting with various members of the Allahabad Bar as also Judges of the Allahabad High Court And this meeting was for the avowed object of ascertaining the state of affairs in Allahabad which will have a bearing on the proposal to transfer Shri Satish Chandra, Carr it be said in all humility that the sequence of events herein set out would not unmistakably show that the complaints against Shri Satish Chandra have to be examined, the truth or otherwise of it has to be ascertained, the degree of his unaccept-ability at Allahabad has to be determined and upon all these considerations flowing invariably from complaints against Shri Satish Chandra, a transfer proposal would be submitted, Add to this the statement in the letter dated December 7, 1980, when the chapter on transfers opens that transfers be made in appropriate cases for strictly objective reasons. In this connection Chief Justice of India states that he has made personal enquiries in this behalf and has met several lawyers and many Judges of the concerned High Courts and on the basis of the data collected during such visit and enquiry which he has considered with greatest objectivity, he proposed transfers including that of Shri Singh. Therefore, the transfer is the outcome of enquiries from lawyers and Judges, about local atmosphere qua a Judge necessitating his transfer. The transfer in such a case would be clearly relatable to the alleged misbehaviour, if any, or conduct of the Judge.
834. Read the letter as a whole and the permeating flavour emerging from it is that the Chief Justice of India believed, truthfully and honestly, but impermissible according to the ratio in Mr. Sheth’s case that the transfer in each case was to remove the Judge from a certain place because he had made himself obnoxious and that this cannot be for any other reason except punishment because it has already been pointed out that transfer is more harmful than even punishment. This conclusion is reinforced by a specific, unambiguous assertion extracted herein-above that the Chief Justice of India was opposed to the wholesale transfer of Chief Justices of High Courts and that his approach was that transfer may be made in appropriate cases for strictly objective reasons. Personal considerations must be wholly kept out in such cases’. Analysing this sentence it would mean that wholesale transfer of Chief Justices referable to an objective norm that the Chief Justices shall always be from outside is not acceptable to the Chief Justice of India, That is his view and he strictly adheres to it. He is, therefore, certainly not proposing transfers as and by way of policy. It would be so because in his leading judgment in Mr. Sheth’s case he has expressed in no uncertain terms that 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. The Chief Justice of India is thus opposed to policy transfers. Therefore, he is not proposing these transfers by way of policy transfers. The Chief Justice of India is of the view that the transfer may be made in appropriate case, meaning thereby selective transfers. Then he says that it must be for objective reasons, These objective reasons may include complaints against the Judge concerned and the complaints, if found to be of substance, transfer may be ordered pursuant to, the complaints. Transfers on such complaints can be made and would not be made punitive is also his view in the leading judgment in Mr. Sheth’s case. To recall his observation that the ‘factious local atmosphere sometimes demands the drafting of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, if becomes necessary to withdraw a Judge from a circle of favourites and non-favourites’, Transfer for these reasons would, according to the, view expressed by Chandrachud, J, in Mr. Sheth’s case , be in public interest. This itself is a moot point, Transfer in appropriate cases not answerable to any objective norms would be selective transfer. But in view of the majority decision in Mr. Sheth’s case, the more objectionable part is that personal considerations in the matter of such transfers be wholly kept out, If by personal considerations it is meant the complaints against Judge then it becomes tautologous because objective reasons remain unexplained. If by personal considerations what is meant is personal difficulties, in conveniences and hardships of the Judge consequent upon the transfer and if these are to be kepi out of consideration, the transfer order becomes bad in view of the ratio in Mr. Sheth’s case. Therefore, summing up the whole approach underlying the letter by which transfers were first proposed show that all the relevant aspects, were not taken into consideration, to wit, proposal to transfer Shri K.D. Sharma to Kerala, that these were not policy transfers because the Chief Justice of India was wholly opposed to policy transfers; that these were selective transfers in appropriate cases meaning complaints against Mr. Justice Farooqi and the future investigation of complaints against Chief Justice Satish Chandra, and the data collected in course of enquiry with lawyers and Judges in respect of other Judges whose transfer was proposed, that the personal considerations, i.e, the personal inconveniences, hardships and difficulties were to be kept out of consideration, and that the transfers were to be for objective reasons, namely, complaints against the concerned Judges, were the governing considerations of the letter and this was operating on the mind of the Chief Justice of India while proposing the transfers. It may also be recalled here that while deciding the transfers the station to which the man is sent has a relevant consideration because as has been pointed out that some stations are good and some are not so good. And while deciding the station it is necessary that the personal considerations of the Judge may have an important bearing, to wit, education of his children, environmental considerations, availability of medical facility, health of his parents, if any, etc. and all these have to be kept in view in deciding the station to which the Judge is proposed to be transferred. Now, here this aspect seems to have been taken for granted because on December 7, 1980, Shri Sharma was proposed to be sent to Kerala and on the next day he was shifted to Sikkim. Is there anything comparable between Ernakulam and Sikkim save and except that they form part of India? Shri Singh was proposed to be transferred first to Jodhpur and then he was shifted to Madras. Now, nothing transpires from the record as to what relevant considerations about selecting the station qua a Judge have weighed with” the Chief Justice of India while making proposal for transfer.
835. One additional fact which I only propose to mention and not comment upon is that all the relevant considerations were not thoroughly examined and analysed before making the proposal and this becomes apparent from the fact that a very vital consideration that a junior may not be imposed over a senior was wholly overlooked when Mr. K.D. Sharma was proposed to be sent to Kerala because there were six Judges senior to Mr. Sharma who would be Puisne Judges and over whom he would be the Chief Justice. And this is admitted when it is stated that that aspect while making the proposal was overlooked. This is such a vital consideration that if the proposal had been carried out, it would hare admittedly invited a great amount of public criticism and would have resulted in administrative problems in the way of Mr. Justice Sharma himself.
836. It may be fairly assumed here that at one stage the Chief Justice of India considered it necessary in public interest to transfer Mr. Justice Gujral from Sikkim but that proposal was eventually dropped.
837. The most serious contention raised by Dr. Singhvi may now be examined. Urged Dr. Singhvi, that before a transfer of a Judge is contemplated it is necessary to keep in view his personal problems and it must be weighed in relation to the reasons for his transfer. When a high constitutional functionary like the Chief Justice of India makes a proposal it is not conceivable that the proposal would be made first and the relevant facts bearing on the subject may be collected afterwards and examined and evaluated later on, on a proposition that if it becomes so necessary the proposal may be withdrawn. This is not how high constitutional functionaries discharge their constitutional obligations. Article 222 provides for a minimum safeguard of a consultation with the Chief Justice of India. What constitutes meaningful, purposive and substantial consultation has been set out earlier. It includes within its fold an inquiry into the personal factors of the Judge such as the position of his wife, children, parents, other inconveniences and difficulties that he might experience on transfer. This can be gathered either from the Judge concerned or from other reliable sources. But personal inconveniences at best can be gathered from the person himself.
838. There is not a little of evidence that before proposing the transfer of Shri K.B. N. Singh from Bihar to Rajasthan on December 7, 1980, he had been given even a glimpse of his proposed transfer. That is an admitted position. Nothing was whispered to him, neither in February 1980 when the Chief Justice of India paid an official visit to Patna, nor at any time till December 7, 1980, when a firm proposal emanated from the Chief Justice of India and was handed in to the Government of India for being implemented. In this connection it is stated in the affidavit of the Chief Justice of India that the mother of Shri K.B. N. Singh is old and is not keeping good health was a fact known to him since Feb., 1980. The age and health of the mother, an objective fact if known would by itself hardly be relevant. The real question, would be, what is the position of the mother qua the son and how much is she in her old age dependent on the son, and what would be the result of bringing about an estrangement between the two. That is a vital consideration not the fact of her age and present health. Till January 5, 1981, during which period two independent proposals emanated from the Chief Justice of India for transfer of Shri K.B. N. Singh, first to Rajasthan and next to Madras, not a whisper was made to Shri Singh about the proposed transfer. After-all, when a high constitutional functionary like the Chief Justice of India makes a proposal how speedily it is processed at the highest level becomes discernible from the fact that the proposal dated December 7, 1980, passed through the Law Minister to the Prime Minister by December 9, 1980, and was approved by the Prime Minister and embarrassment was felt as disclosed by the letter of the Chief Justice of India dated December 18, 1980, while withdrawing the proposal. The incontrovertible fact situation that emerges from reading the correspondence is that the Chief Justice of India made the proposal for transfer of Shri K.B. N. Singh in the letter dated December 7, 1980, reaffirmed it in the letter dated December 8, 1980, described it as tentative by saying that the proposal concerning Shri K.B. N. Singh may wait further consideration by the letter dated December 18, 1980, and affirmed it to be a firm proposal by letter dated December 20, 1980, without whispering a word to Shri K.B. N. Singh. The proposal is unaccompanied by necessary relevant facts evidencing the relevant public interest, and it is inevitable that it must be so. Public interest which necessitates transfer is not stated. There is not the slightest reference to the problem of mother of Shri Singh. May be, Chief Justice of India may consider it irrelevant from his stand-point, But President is entitled to know every relevant fact. And barring making proposal till that day no relevant fact is collected and even if Chief Justice of India had the facts, none were stated in the proposal. Would the Chief Justice of India accept this proposal emanating in this form from President without further inquiry? He would send for all relevant material which must be the source and foundation for transfer. Should the President be denied the same considerations? And President says he had no discussion with the Chief Justice of India, It was for the first time in a telephonic talk in the evening of January 5, 1981, the Chief Justice of India conveyed the proposal for transfer to Shri K.B. N. Singh. By that time two firm proposals, one a tentative and another final were pending with the Government of India. It would be stretching one’s credibility to limit to hold that Chief Justice of India postponed talking to Shri Singh to a date later than the proposals. Chief Justice of India is an authority to be consulted but instead of being consulted he initiated the proposal. The minimum that is excepted of him is that he collects all relevant facts, also collects the relevant personal problems of the Judge to be transferred, examines, appraises and evaluates them from all objective standards keeping in view the possible inconvenience and hardship likely to be caused to the Judge and comparable public interest which necessitates transfer and thereafter puts forward the proposal. While discharging such a high constitutional function of either initiating the proposal for transfer or for being consulted for transfer it would be a failure to perform the constitutional duty if the proposal is made first, processed right up to the Prime Minister in one case and collecting of the data is postponed to a later date. This is contrary to what Chandrachud, J. has stated in his judgment in Mr. Sheth’s case . To recall, he said that 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 a right decision taken. The decision to be a right decision must follow the collection of material and be based on the material and that collection of evidence is not an empty formality for the record only.
839. It was, however, said that before the proposal was finally implemented by the Presidential notification transferring Shri K.B. N. Singh there was a full and effective consultation between the Chief Justice of India and the President and that by that time the Chief Justice of India was in possession of all the relevant and material facts, Attention in this context was invited to a statement in the affidavit of the Chief Justice of India that there was a full and effective consultation between me and the President of India on the question of Shri K.B. N. Singh’s transfer from Patna to Madras as Chief Justice of Madras High Court. Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer’. What reference to the statement in affidavit a question was put to Mr. Parasaran, learned Solicitor-General as to whether the discussion involved in consultation was personally with the President of India or the expression ‘President of India’ means the Government of India and the consultation was through proper channel as laid down in the rules of business. A statement was read over to the Court by Mr. Parasaran, possibly as instructed by the President of India, that at no time the Chief Justice of India had any personal discussion with the President, Therefore, one has to fall back on the discussion, if any, Chief Justice of India may have either with the Law Minister who as Minister of Justice according to the rules of business would be the proper person to deal with the problem of transfer. It appears more or less the discussion has been by correspondence. Even a perfunctory knowledge about official correspondence would convince anyone that if there is a continuous correspondence on the subject, every letter would have a reference to the prior letter bearing on the subject. Turning to the first letter dated December 7, 1980, in which a proposal is made for transfer of Shri K.B. N. Singh from Patna to Rajasthan, there is not the slightest reference to any earlier discussion oral or in writing between the Law Minister and the Chief Justice of India on the question of transfer of Shri K.B. N. Singh, It may be that there was some public debate about the transfer of all Chief Justices of High Courts pursuant to a policy which was sought to be evolved that the Chief Justices of all High Courts must be from outside the State. This evolving proposal was not acceptable to the Chief Justice of India when he said in the first letter that he is firmly opposed to a wholesale transfer of Chief Justices of High Courts. Then he proceeded to point out transfers may be effected in appropriate cases for strictly objective reasons, Having settled what ought to be the governing form for transfer, the Chief Justice proposed transfer of Acting Chief Justice K.D. Sharma, Chief Justice K.B. N. Singh, Acting Chief Justice M.B. Farooqi and Justice M. H. Hussain, Recalling the statement in the affidavit that there was full and effective consultation with the President of India prior to transfer, it has to be evaluated in the light of the contemporaneous written evidence in the form of the letter of the Chief Justice of India dated December 1, 1930. And in the statement on behalf of Union of India dated November 12, 1981, it is specifically made clear that except the disclosed correspondence and notings for which privilege is claimed there are no minutes or notes of discussion. I have shown above that there is no other contemporaneous written record except the correspondence. The first proposal to transfer Shri K.B. N. Singh finds its place in letter dated December 7, 1980. It is an admitted position that prior to that there was no discussion between the Chief Justice of India and the Law Minister. Equally it is an admitted position that Shri K.B. N. Singh was not even whispered that it was proposed to transfer him. It is also an admitted position that it was on January 5, 1981, that the Chief Justice of India talked with Shri K.B. N. Singh for the first time in which he broached the subject of transfer of Shri Singh. The inescapable conclusion is that a firm proposal for transfer was submitted to Government as late as December 20, 1980, and about 15 days thereafter Shri Singh was told for the first time about his proposed transfer and was invited to inform The Chief Justice of India about his personal difficulties and Inconveniences, Now, the order of transfer is dated January 19, 1981. In between Shri Singh met the Chief Justice of India on January B, 1981. and till the order of transfer was notified there is nothing in the correspondence which shows that there was any further discussion. The firm decision was reached on January 8, 1981 itself because it was stated to the court that the Prime Minister approved the proposal of transfer of Shri Singh on January 9, 1981. It is reasonable to believe that Law Minister must have processed the proposal on January 8, 1981. The meeting between Chief Justice of India and Shri Singh took place in the evening on January 8, 1981, This would establish that a firm proposal for transfer was made, processed and approved before collecting all the relevant material which would considerably detract from the validity and efficacy of the proposal. Even if subsequently gathered facts were communicated to the President, one could have overlooked this apparent defect but the written record does not bear out that the President was informed of all the relevant facts.
840. One would have expected in this connection that while making the proposal for transfer, the very letter would, in respect of each Judge proposed to be transferred, set out therein as to what were the personal difficulties, what necessitates the transfer, which public interest was likely to be served by the transfer and all these should find their relevant place in the proposal itself, Oral or telephonic conversation while discharging important constitutional function affecting character and dignity of such high constitutional functionary as Chief Justice of a High Court is entirely out of place, The only reference to the transfer of Shri K.B. N. Singh in the first letter is as under:
The transfer of Justice K.D. Sharma will create a vacancy in the office of the Chief Justice of the Rajasthan High Court. I recommend that Justice K.B. N. Singh who is the Chief Justice of the Patna High Court, should be transferred as the Chief Justice of the Rajasthan High Court.
We struggled hard to find out from this long letter as to what public interest prompted the Chief Justice of India to propose transfer of Shri K.B. N. Singh to Rajasthan The later suggestion that Shri Singh’s transfer was proposed to subserve the public interest, namely, that he is a senior, experienced Chief Justice needed to preside over a premier High Court will not help because there was no question of sending a senior, experienced Chief Justice to Rajasthan High Court and at the relevant time there was no proposal for transfer of Shri M.M. Ismail. Chief Justice of Madras High Court, Therefore, some other public interest must have informed the Chief Justice of India to propose transfer of Shri Singh to Rajasthan. What inevitably transpires is that the transfer of Shri Singh from Patna is certain, reasons and place and public interest may fill in the gap as situation demands. This is neither consultation nor appreciation of relevant facts to satisfy the rigorous test laid down in Mr. Sheth’s case.
841. There is a further lacuna in the process of consultation and it may be briefly mentioned here. While laying down the parameters of the scope of consultation under Article 222(1), Chandrachud, J., in his leading judgment of the majority view in Mr. Sheth’g case ‘ approved and affirmed the passage in Chandramouleshwar Prasad extracted earlier, Approving the statement of law contained in the extracted passage, it was said in Mr. Sheth’s case that in order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision, If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter proposal without anything more cannot be said to have been issued after consultation (pp. 674-675) (of SCR): (at p. 375 of AIR). The question is, whether this test is satisfied.
842. Chief Justice of India unmistakably asserts that he is opposed to policy transfers or Wholesale transfers of Chief Justices of the High Courts. He is of the view that transfers may be made in appropriate cases for strictly objective reasons. In other words, selective transfers. Pursuant to this view held by him he proposed amongst others the transfer of Shri K.B. N. Singh, This proposal was to be processed by the executive. It was incumbent upon the executive to have requested the Chief Justice of India to put all the materials and relevant facts collected by him for consideration of the President, Obviously, pursuant to a caution voiced by Chandrachud, J. in Mr. Sheth’s case that as a high constitutional functionary like the Chief Justice of High Court was involved all the necessary relevant facts bearing on the question of transfer must be collected by the Chief Justice of India as this is founded on the principle that in a matter which concerns the judiciary vitally, no decision ought be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to consider the situation fairly, competently and objectively. In order to consider every relevant fact in the discharge of this constitutional obligation the Chief Justice of India would be within his right and indeed it is his duty wherever necessary to elicit and ascertain further facts either directly from the judge concerned or from reliable sources, but thereafter he has voiced a caution that ‘the executive cannot and ought not to establish rapport with the judges which is the function and privilege of the Chief Justice’, Consistently with this weighty judicial pronouncement the Chief Justice of India alone will have to gather all material and the executive would be well advised to keep hands off the judiciary, Therefore, whatever material the Chief Justice of India will have, has to be placed before the President. The correspondence manifests a woeful lack of any such material being placed before the President. That apart, the Chief Justice of India proposed selective transfers in appropriate cases strictly for objective reasons. Now, look at the performance of the executive. The executive appears to have accepted the proposal not on merits but out of reverence for the Chief Justice of India which constitutes a complete abdication of its function. This becomes discernible when in the course of hearing in response to a query made by the Court, the learned Solicitor-General made a statement on November 12, 1981, which is material for the decision on this point and, therefore, may be extracted hereunder:
Throughout the Government had been of the view that as a policy the Chief Justices of the various High Courts should be from outside their States. It is this policy view that was put across to the Chief Justice of India. The Chief Justice of India expressed that he was opposed to all the Chief Justices of the High Courts being from outside and was keen on transfers to be made in appropriate, cases strictly for objective reasons. It is in pursuance of the view propounded by the Chief Justice of India that he suggested the transfers covered by the letters which in his view were desirable. Government acceded to the transfers proposed by the Chief Justice of India as (1) it was felt that not agreeing to these transfers may be construed as though the Government is departing from the view of having Chief Justices from outside; (2) the policy aspect could still be Dressed into service later.
(Emphasis supplied) At a later stage of the hearing to a further query by the Court Mr. Parasaran in terms stated that the Government accepted the proposal for transfer not for the reasons which prompted the Chief Justice of India to propose transfers but for its own reasons. Recalling the test of consultation at this stage set out just hereinabove that ‘if one party makes a proposal to other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation’, the proposal was for a selective transfer definitely not in consonance with any policy Government of India may have in contemplation which was firmly opposed and the counter proposal was for policy transfer and giving effect to the counter proposal without anything more cannot be said to be after consultation. The test of consultation certainly is not satisfied because not only two minds have not been able to confer and produce a mutual effect but each did not have full and identical facts and, therefore, the final decision cannot be said to be the product of consultation and deliberation.
843. A very emotional and passionate appeal was made by Mr. Parasaran to consider these transfers as policy transfers. In the light of the statements hereinabove quoted, the appeal must fall on deaf ears, for, the Government of India had a policy in embryonic stage and the Chief Justice of India was firmly opposed to any such policy because he is firmly committed to the view as laid down in his majority judgment in Mr. Sheth’s case that policy transfers on a wholesale basis which I have 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. He reasserts this in his letter dated December 7, 1981. Apart from this, it is impossible to uphold this transfer as a policy transfer, It is no doubt true that laying down of a policy is the function of the executive. If that policy relates to ludiciary, ordinarily the executive would be well advised to have full and effective consultation with the Chief Justice of India, the highest constitutional functionary in the judiciary, The policy has to be evolved and firmly laid, Views expressed do not constitute policy, Now the Question is. was there any policy to which these transfers can be related? The view of the Government as expressed by the Law Minister is that Chief Justice of every High Court shall be from outside his jurisdiction. Maybe, the Government may lay down such a policy and as and when laid down its constitutional validity may have to be examined, But one cannot accord the status of policy to a view expressed by the Law Minister, may be the official spokesman for the Department of Legal Affairs and Justice of the Government of India. We were not told how a policy is framed and firmly laid down. But a view occasionally expressed does not have the trappings of a firmly laid down policy. And it is not in dispute in this case. In the statement extracted hereinabove made on behalf of the Government of India, the policy question was to be examined at a later stage. A reference to the statement of the Law Minister in the Lok Sabha on July 24, 1980. upon a calling attention motion on the resolution of the Bar Council of India disapproving Government proposal to appoint seniormost judge of a High Court as Chief Justice of another High Court in the country, may be made, The Law Minister stated as under:
The Government has, however, received representations from various quarters urging that as a matter of policy the Chief Justice of a High Court should be appointed from outside the Jurisdiction of that High Court. This matter is actively encaging the attention of the Government. Even though Government’s thinking has not taken a final shape in the matter the Government is prima facie of the view that the proposal by and large merits favourable consideration in the interest of sound judicial administration and also the independence of the judiciary.
(Emphasis supplied) This statement would at once reveal that till July 24. 1980, the matter was under consideration of the Government and that the Government’s thinking had till then not taken a final shape in the matter. Then as late as September 3, 1981, the Law Minister informed the Consultative Committee of the Ministry of Law, Justice and Company Affairs that he had sought views of the Chief Justice of India on the policy of having Chief Justices from outside as that by itself would considerably improve the functioning of the High Courts. The Law Minister further apprised the members of the approach of the Chief Justice in the matter of transfers and appointments of outsiders, He proceeded to state that a final decision in the matter of a policy of transfers was still to be taken. (underlining mine). At any rate, this unmistakable, unambiguous statement of the Law Minister on September 3, 1981, much after the commencement of hearing in this case in the Court, would remove any vestige of doubt that a decision on policy transfers was yet to be taken. There was a view expressed but no policy in July 1980, there was no such policy in January 1981 when Shri K.B. N. Singh was transferred, there was no policy as late as September 3, 1981. when the case was being heard and the statement made to this Court on November 12, 1981, that the policy aspect could still be pressed into service later on, leave no room for doubt that the impugned transfer was not a policy transfer. Therefore, the transfer of Shri Singh cannot be upheld as a policy transfer. It is rather in this context surprising that the Chief Justice of India while firmly opposing policy transfers in letter dated December 7. 1980, should tell Shri Singh on January 5, 1981 that it was Government policy to transfer judges. And there is nothing to show that between December 7. 1980, and January 5, 1980, Chief Justice of India has veered round to the view of Law Minister because if he had, he could have proposed transfer of a large number of Chief Justices and not confined, himself to two only.
844. It may be mentioned In passing that there was a very lively debate about the power of the executive to lay down policy. It is a well recognised epithet of constitutional wisdom that in constitutional matters the Courts do not decide what is not brought before it nor would it prefer advice except in a reference under Article 143, on the wisdom or validity of a future action. If there is no policy till today it would be unwise to pronounce upon a future policy without knowing what form and shape it would take, No carte blanche can be given in this behalf. How dangerous it would be can be illustrated by observing that if the policy were to be laid down by the executive that a Judge of the High Court who decides the matter against the Government will be transferred it would be an objective norm because it can be easily ascertained whether a judge has decided a matter against the Government, Such a policy, if at all laid down, would be complete antithesis of the independence of judiciary, Therefore. I refrain from saying anything on the wisdom or validity of what is being proposed as a policy that every Chief Justice must be from outside the State because there is no such policy and as and when it is laid down, if questioned, its validity will have to be examined.
845. One more infirmity urged and likely to invalidate the order of transfer may now be examined, The power to transfer a High Court judge can be exercised only in public interest, In the proposal forwarded to the Government by the letter dated December V, 1980, and the letter dated December 20 1980, for transferring Shri K.B. N. Singh first to Rajasthan and then to Madras, it is nowhere stated what public interest is sought to be served by this transfer. This assumes importance because both the constitutional functionaries involved in the process of consultation are operating on different wave lengths, to writ Chief Justice of India for selective transfers. President to buttress the position to evolve a policy in future, In the affidavit it is stated that consequent upon the transfer of Shri M.M. Ismail from Madras to Kerala it was necessary to appoint a senior, experienced Chief Justice in the Madras High Court, Permanent and senior, experienced Chief Justice from outside to man a High Court seems to be a phenomenon of recent origin, Ordinarily the seniormost puisne judge is appointed as Chief Justice. There were of course, some cases in which the Chief Justice was brought from outside and the cases pointed out were of Mr. Justice Das sent to Karnataka, Mr. Justice Sars (sic) Prasad going to Rajasthan, and our esteemed colleague Mr. Justice R.S. Pathak going to Himachal Pradesh, But these cases are few and far between. The normal rule of succession has been the seniormost puisne judge becoming the Chief Justice unless he was otherwise found to be unsuitable, And the Chief Justice of India accepts unreservedly just and rightful expectations of the seniormost puisne Judge to be promoted as Chief Justice when he suggests that Mr. Poti. seniormost puisne judge in Kerala High Court will be deprived of his just and rightful expectation to become Chief Justice on the transfer of Sri K.D. Sharma, and therefore, further suggested that Mr. Poti be appointed in a suitable vacancy as Chief Justice but outside Kerala, thereby, of course, denying rightful expectation of the seniormost puisne judge in that High Court. Now, Mr. P.R. Gokulakrishnan is the seniormost puisne judge of the Madras High Court, Nothing is pointed out why he would be considered unsuitable for being promoted as Chief Justice if it becomes necessary to transfer Mr. Ismail. Mr. M.M. Ismail who was seniormost puisne judge was promoted as Chief Justice, Madras, on retirement of Mr. Ramaprasada Rao in the year 1979 who had by that time to his credit experience of 12 years of High Court judgeship HOW it became a compelling necessity not to promote Mr. Gokulakrishnan even if Shri M.M. Ismail was to be transferred, left us guessing. Mr. Gokulakrishnan was appointed as permanent judge of Madras High Court on July 7, 1969 Mr. Poti was appointed as Additional Judge of Kerala High Court on March 20, 1969. If a judge of a High Court after twelve years of High Court judgeship is not suitable for being promoted as Chief Justice. he would ordinarily never become suitable for that post. But Mr. Poti is good enough to be appointed Chief Justice but unsuitable for Kerala, for which Mr. Sharma an inductee of 1973 was considered good enough to be permanent Chief Justice. Again, Mr. S. Sarwar Ali inducted as High Court Judge on July 6, 1970. was recommended to be posted as Acting Chief Justice of Patna High Court on the transfer of Mr. Singh, If Madras High Court has a life span over a century, so also Patna High Court has a life span over a century. But Mr. Ismail, a senior experienced Chief Justice is transferred to Kerala High Court, a High Court which came into existence as late as 1956 and just celebrated its Silver Jubilee, Delhi High Court has a permanent Chief Justice who is an inductee of January 1969, Every attempt to find an objective norm or yardstick related to, proclaimed public interest by which these transfers can be measured or Judged and for which they were ordered has led me to a blind alley. For over 30 years with some few exceptions the seniormost puisne Judge was always promoted as the Chief Justice except in the case of Himachal Pradesh when on setting up the High Court for the first time Mr. M.H. Beg was transferred from Allahabad and promoted as Chief Justice and posted at Simla. And also again when someone had not put in five years of High Court judgeship before his turn to be elevated as Chief Justice arrived, It is quite well-known that next in line of succession to the Chief Justice is always being trained by being normally associated with administration so that when the elevation as Chief Justice bar comes due he has already his grip over the administration. In most of the High Courts seniormost puisne judge is always entrusted with a large chunk of administrative work and therefore, he is probably well acquainted and trained to take over the responsibilities of a Chief Justice, There is no material on record which would show that Mr. Gokulakrishnan would not compare favourably with Mr. Singh for being appointed as Chief Justice of Madras High Court. Mr. P.S. Poti the seniormost puisne Judge of Kerala High Court and who is functioning as Acting Chief Justice since the elevation of the then Chief Justice of Kerala High Court to Supreme Court has been a Judge of the High Court since 1969. If 12 years of High Court Judgeship does not make the incumbent mature for Chief Justice one would be left guessing when he would become one, And yet Mr. M.M. Ismail was transferred to Kerala reverting Mr. Poti as puisne fudge, it thus appears that the transfer of Shri Singh on the ground that he is the seniormost experienced Chief Justice which would be in public interest, fails to carry conviction.
846. Dr. Singhvi, learned Counsel for Shri Singh also contended that the transfer of Shri Singh is punitive in character. The Chief Justice of India specifically denies this charge And further it is stated that when Mr. K.B. N. Singh brought up the question of some baseless complaints against him, the Chief Justice of India assured him that he did not go by baseless complaints and he did not believe that his (Mr. Singh’s) conduct was blameworthy. And the Chief Justice of India further assured him that he did not hold Mr. Singh was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Thus the answer of the Chief Justice would certainly show that the complaints against Mr. Singh did not provoke the transfer. Shri Singhvi however, tried to persuade us by putting in fuxtaposition certain events which would permit an inference that the complaints against Shri Singh formed the foundation for the order of transfer. It was pointed out that when in February 1980 the Chief Justice of India visited Patna he met lawyers and Judges which may permit an inference that the complaints against Shri Singh must have been voiced by those lawyers. This feeling was uppermost in the mind of Shri Singh because he himself broached the subject at a meeting with the Chief Justice of India on January 8, 1981. and even though the Chief Justice of India assured Shri Singh that he did not go by baseless complaints and that he did not believe that his conduct was blameworthy but yet pointed out that certain persons were exploiting their proximity with him which had created needless misunderstanding and dissatisfaction. Drawing sustenance from this statement it was contended that inferentially speaking the situation has come at Patna to such an impasse that Shri Singh was required to be uprooted from that atmosphere and, therefore, the transfer and this being a selective transfer it would attach stigma or slur. While accepting what the Chief Justice of India says that the complaints did not form the foundation for transfer and that the Chief Justice was actuated by the sole desire to subserve the public interest in proposing the transfer of Shri Singh. selective transfers always give rise to canards and the transferred Judge suffers character assassination. From this limited point of view one cannot escape the conclusion that such transfer in the background stated would cast a slur and, therefore, punitive in character and that would also vitiate the order of transfer.
847. Having examined all the relevant considerations, regrettable as it may appear the conclusion is inevitable that the order of transfer of Shri K.B. N. Singh is vitiated for want of effective consultation and the selective transfer would cast a slur or stigma. Add to this that the public interest pleaded fails to carry conviction in the facts and circumstances of this case and. therefore, the transfer does not appear to be in public interest. For all these reasons the order of transfer is vitiated and must be declared void.
848. In the course of hearing petitioners requested the Court that the correspondence that passed between the Chief Justice of India, the Chief Justice of Delhi High Court and the Law Minister in regard to the non-appointment of Shri S.N. Kumar as additional Judge be disclosed, The Union of India through the affidavit initially of Shri S.M. H. Burner, Secretary, Ministry of Justice and subsequently by the affidavit of Shri T.N. Chaturvedi, holding the same post, claimed privilege on the ground that doctrine of candour demands that the correspondence bearing on the question of appointment Or non-appointment of high constitutional functionaries should not be disclosed. There was a similar request for disclosure of correspondence that passed between the Chief Justice of India and the Law Minister with reference to the transfer of Shri K.B. N. Singh, Chief Justice of Patna High Court to Madras High Court. After hearing both sides at considerable length and first perusing the documents ourselves to ascertain whether disclosure of it would or would not be in public interest, we directed disclosure and deferred giving our reasons for the same. I would, however, briefly say what I feel to be the fairly antiquated notion about the secrecy in administration. Privilege was claimed wider Section 123 of the Indian Evidence Act, 1872. Section 123 was enacted in the hey-day of the colonial regime. And more thin a century after when the Raj has disappeared and a republican form of Government under a liberal Constitution is ushered in. we are told that the principle enunciated in Section 123 holds good, What is impermissible under Section 123 is giving evidence derived from unpublished official records relating to affairs of the State. It was said that appointment to high offices is such a sensitive subject that the expression ‘affairs of the State’ would be wide enough to comprehend the same and therefore, correspondence, notes notings connected therewith forming part of unpublished official record cannot be disclosed to the Court except at the cost of injury to public interest. Add to this the prohibition enacted in Article 74 that the court cannot inquire whether, if any, and if so what, advice was tendered by the minister to the President, privilege was claimed and disclosure was opposed On the above mentioned ground. It was very passionately urged that no public interest would be served by washing the linen, dirty if it appears to be, in open and who is going to be benefited by disclosure of such documents. In the State of Punjab v. Sodhi Sukhdev Singh . Gajendragadkar, J, speaking for Sinha, C. J. and Wanchoo, J., referred to Duncan v. Cammell Laird & Co. Ltd. 1942 AC 624, wherein Viscount Simonds L.C. deduced the principle which has to be applied in such cases in the following words:
Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest must as a class be withheld from production.
The question was whether the objection to production taken was valid one or not. The House of Lords in the aforementioned case held that an objection validly taken to production on the ground that this would be injurious to public interest is conclusive. Having referred to this observation, the majority decision further proceeded to state that the decision in the case before it wherein privilege was claimed against disclosure must ultimately rest on the relevant statutory provisions contained in Indian Evidence Act The Court then referred to Sections 123 and 162 of the Indian Evi. Act. Referring to the expression “affairs of the State” in Section 123, the majority judgment observed that in the latter half of the Nineteenth Century affairs of State may have had a comparatively narrow content, but with the State to pursuit of its welfare activities which were formerly treated as purely commercial and documents in relation to such commercial activities undertaken by the State in pursuit of public policies of social welfare are also apt to claim the privilege of being documents relating to the affairs of State. It is in the latter Class of documents the Court proceeded to determine the claim for privilege in such borderline cases. The Court ultimately upheld the claim for privilege, Duncan’s case appear to be hovering over the entire discussion. Then came Conway v. Rimmer 1968 AC 910. This decision moved a step further because it was held therein that the Court can inspect the document to find out whether the claim to privilege is well merited. The view in Sodhi’s case was to some extent diluted by reference to Conway. Two subsequent cases, one in Science Research Council v. Nasse 1980 AC 1028 and Burmah Oil Co. Ltd. v. Governor & Company of the Bank of England 1980 AC 1090. were also referred to. The discussion as to what is laid down by the House of Lords in aforementioned cases was so elaborate in the Court that at one time I suspected that these decisions will have to be explained away, otherwise they are binding on us, A specific question was put, should we mould our approach dovetailing it to the changes in the view in the United Kingdom because it is an undeniable fact that on the question of privilege and disclosure commencing with Duncan and ending with the last mentioned case, the view in this country has more or less changed shades with the view expressed by the House of Lords. In my opinion, Section 123 must be construed on its own terms. Undoubtedly, a century old provision enacted to some extent keeping in view the needs of Empire builders must change in the context of the Republican Government and the open society which we have set up. Undoubtedly there must be such affairs of the State involving security of the nation and foreign affairs where public interest requires that the disclosure should not be ordered. It is, however, equally well recognised that fair administration of justice is itself a matter of vital public interest. Therefore, if the two public interests conflict, the Court will have to decide whether the public interest which formed the foundation for claiming privilege would be jeopardised if disclosure is ordered and on the other hand whether fair administration of justice would suffer by non-disclosure and decide which way the balance tilts. Viewed from this angle. it was stated in Conway that the Court should, balance public interest involved where a clash of public interest is brought to its notice. In the ultimate analysis the approach of the Court while deciding the question of privilege would be that it has to balance public interest in just justice and just administration of justice and state affairs at high level in respect of appointment to high constitutional offices and then decide which way the balance tilts. Having formulated this test the answer was that a disclosure in the interest of justice far outweighs the possible embarrassment felt by disclosing certain aspects. I do not propose to deal with the matter further. Justice Bhagwati by a very elaborate discussion has given reasons why the disclosure was necessary and I find myself so entirely in agreement with what has been stated by him that I do not think I can usefully add anything to it.
849 The only point that now remains is whether the petitioners Iqbal M. Chagla and three others in the petition filed in the Bombay High Court, Mr. V.M. Tarkunde. petitioner in the petition filed in the Delhi High Court and other advocates who have filed petitions in Patna and Madras High Courts have a locus standi to maintain the petitions. Learned Attorney General did not raise this question but Mr. P.R. Mridul learned Counsel who appeared for the Law Minister in the first set of petitions seriously contended that the petitioners have no locus standi. In fact the matter has assumed academic importance because in the 1st batch of petitions Shri S.N. Kumar, the learned Judge of the Delhi High Court who was given short term extension and was ultimately not appointed, has questioned the validity and legality both of the circular issued by the Law Minister and the power claimed by the executive not to appoint an additional Judge after the expiry of his initial term. His locus standi is beyond question. Similarly, in the other batch of petitions Shri K.B. N. Singh, the Chief Justice transferred is transposed as petitioner No. 3 in the petition filed by Shri D.N. Pandey and another advocate of the Patna High Court and he has challenged the validity and legality of the order of his transfer. His locus standi is beyond question. Therefore, the contention about locus standi is now of academic interest and I do not propose to deal with it. However, I am in full agreement with my learned brother Bhagwati, J. who has discussed this aspect in meticulous details.
850. That is the end of the journey, To sum up:
(1) An additional Judge can only be appointed in the High Court if the President is satisfied that there is a temporary increase in the work of the High Court or there are arrears and for this purpose it is necessary to increase the number of Judges in the High Court for the time being.
(2) An additional Judge appointed initially for a certain tenure has a right to be considered for fresh appointment on the expiry of the tenure and the consultation must proceed along the same lines as prescribed under Article 217.
(3) Consultation under Article 217 must be full, effective and meaningful and in the case of an additional Judge, if there is any defect, drawback or deficiency in the consultation the decision arrived at is open to judicial review.
(4) Power to transfer a High Court Judge conferred by Article 222 on the President can be exercised after full, effective and meaningful consultation with the Chief Justice of India and this necessitates all the facts in possession of one or the other constitutional functionary being fully exchanged and deliberated upon.
(5) Power to transfer a High Court Judge cannot be exercised with a view to punishing a Judge of for anything in his conduct or behaviour which may cast a slur or stigma on him.
(6) The circular of the Law Minister dated March 18, 1981 does not suffer from any infirmity and is not constitutionally invalid.
851. Accordingly. Transferred Case No. 19/81 arising from the writ petition filed by Shri S.P. Gupta in Allahabad High Court. Transferred Case No. 21/81 arising from the petition filed by Shri J.L. Kalra and others in the Delhi High Court, Transferred Case No. 22-81 arising from the petition filed by Shri Iqbal M. Chagla and three others in the Bombay High Court and Transferred Case No. 20/81 arising from the writ petition filed by Shri V.M. Tarkunde in the Delhi High Court are dismissed There will be no order as to costs in all the matters.
852. Transferred Case No. 24/81 in which Shri K.B. N. Singh, Chief Justice of Patna High Court is transposed as petitioner No. 3 is allowed and the order dated January 19. 1981. transferring him as Chief Justice of Madras High Court is quashed and set aside and a mandamus is issued to the Union of India directing it to forbear from giving effect to the said order. There would be no order as to costs.
853. In view of this decision no specific order is required to be made in Writ Petition No. 274/81 filed by Miss Lily Thomas. Transferred Case No. 6/81 arising from a writ petition filed by Shri P. Subramanium in Madras High Court and Transferred Case No. 2/81 arising from a writ petition filed by Shri A. Rajappa in the Madras High Court and they accordingly stand disposed of There would be no order as to costs.
854. In view of the order quashing and setting aside the order directing transfer of Shri K.B. N. Singh as Chief Justice of Madras High Court the Special Leave Petition No. 312/81 filed by Shri Ripudaman Prasad Singh has become infructuous and would stand disposed of accordingly with no order as to costs throughout.
R.S. Pathak, J.
855. Transferred Case No. 19 of 1981, filed by Shri S.P. Gupta, an Advocate of the High Court at Allahabad, as a writ petition challenges the validity of a Circular letter dated March 18, 1981′ issued by Shri P. Shivshankar, Minister for Law, Justice and Company Affairs in the Union Government and addressed to the Governor of Punjab and the Chief Ministers of all the States, except the north-eastern States, requesting them to obtain the consent of additional Judges serving in the High Courts to their appointment as permanent Judges of other High Courts. Such consent was also required from persons who had already been proposed or may in the future be proposed, for initial appointment. He contends also that the President has fail ed to appoint the necessary number of permanent and additional Judges of the High Court of Allahabad in accordance with Article 216 and Clause (1) of Article 224 of the Constitution, and he assails the appointments of some Additional Judges of the High Court for short terms of six months only when, according to him, the additional Judges should have been appointed as permanent Judges. In particular, he has prayed for a declaration that three additional Judges, Mr. Justice Murli Dhar Mr. Justice A.N. Verma and Mr. Justice N.N. Mithal be deemed to have been appointed as permanent Judges and that the Circular letter of the Law Minister is void.
856. Transferred Case No. 20 of 3981 filed by Shri V.M. Tarkunde, a senior advocate of the Supreme Court as a writ petition in the High Court of Delhi, also assails the Circular letter and the appointments of three additional Judges, Shri O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad for a further period of three months only. The petitioner prays that the Circular letter be declared void and the posts of additional Judges in the several High Courts be converted into permanent posts, Of the three additional Judges specifically named, Shri S.N. Kumar has entered appearance and has supported the case pleaded by the petitioner.
857. Shri J.L. Kalra and a few other advocates filed Transferred Case No. 21 of 1981 as a writ petition in the High Court of Delhi and, inter alia, they have prayed for mandamus to the Union Government to create an adequate number of posts of permanent and additional Judges and to make appointments to those posts.
858. Four advocates practising in the High Court of Bombay, Shri Iqbal M. Chagla, Shri C.R. Dalvi, Shri M.A. Rana and Shri Sorab K.J. Modi filed Transferred Case No. 22 of 1981 as a writ petition in the High Court of Bombay questioning the validity of the aforesaid Circular letter dated March 18, 1981 and have prayed inter alia for a declaration that the Circular letter is ultra vires and void and that the Union Government should be directed not to act on the consent conveyed by the additional Judges.
859. These four cases constitute a group raising substantially common points For consideration.
860. There is a second group, also consisting of four cases, led by Writ Petition No. 274 of 1981 filed by Miss Lily Thomas, an advocate practising in the Supreme Court of India, under Article 32 of the Constitution. She challenges the transfer of Shri M.M. Ismail, Chief Justice of the Kerala High Court, Shri M.M. Ismail has filed an affidavit stating that he has decided not to proceed to Kerala, nor to challenge the validity of the order of the President transferring him, but to proceed on leave preparatory to retirement by resignation of his office. Shri M.M. Ismail has resigned since.
861. An advocate, Shri A. Rajappa, practising in the High Court of Madras, filed Transferred Case No. 2 of 1981. He prays for a declaration that the order of the President transferring Shri M.M. Ismail from the High Court of Madras to the High Court of Kerala and Shri K.B. N. Singh, Chief Justice of the High Court of Patna, to the High Court of Madras is void.
862. Transferred Case No. 6 of 1981 was filed in the High Court of Madras by Shri P. Subramaniam, praying for the same reliefs as Shri Rajappa in Transferred Case No. 2 of 1981.
863. Two advocates, Shri D.N. Pandey and Shri Thakur Ramapati Sinha, filed Transferred Case No. 24 of 1981 in the High Court at Patna challenging the order of transfer of Shri M.M. Ismail from the High Court of Madras to the High Court of Kerala and of Shri K.B. N. Singh from the High Court of Patna to the High Court of Madras. During the pendency of this writ petition, Shri K.B. N. Singh, who had been impleaded as a respondent, was transposed as a petitioner.
864. These cases raise constitutional questions of considerable significance to the judicial system in India. They involve grave issues of fundamental importance respecting the High Courts and the Judges constituting them. They deeply affect the Rule of Law and the administration of Justice.
The Rule of Law and the administration of Justice:
865. India is a sovereign socialist secular democratic republic governed by a written Constitution designed to secure to all its citizens Justice, liberty, equality and fraternity in their various facets. A constitutional democracy to portrayed has its Institutions and values rooted in the Rule of Law, and that is plainly demonstrated by the provisions of our constitutional structure and the constitutional philosophy inspiring it. The vitality of the Rule of Law flows from those roots to the several branches of the constitutional structure, sustaining and nurturing them and giving them life and their intended significance.
The Rule of Law is the Primary Principle of our Constitution, and in its universality and omnipotence it postulates that no one, neither State nor individual, shall act contrary to the law, and nobody shall be denied right and justice. The principal organs of the State, the Executive, the Legislature and the Judiciary are governed by it and operate through it. In its daily task of adjudicating disputes, the judiciary maintains the Rule of Law and enforces it. It does so by interpreting the law and applying it and, in appropriate cases, decreeing its observance. And in adjudging the constitutional validity of legislation and executive acts, it protects the Rule of Law embodied in the Constitution.
866. In securing and promoting the resolution of disputes in a legal forum in accordance with established legal procedure, the administration of justice ensures a peaceful and orderly progress by a people through constitutional methods towards the realisation of their aspirations. And if it is to rule their minds and hearts, the administration of justice must enjoy their confidence, Public confidence in the administration of justice is imperative to its effectiveness, because ultimately the ready acceptance of a judicial verdict alone gives relevance to the judicial system. While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary. An independent and impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu.
867. India’s statesmen, political leaders, eminent jurists and representatives of a broad cross-section of our national life were engaged for about three years in forging a Constitution worthy of India’s greatness. In the fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the Judges, and throughout the Constituent Assembly debates the most vigorous emphasis was laid on that principle. The judiciary in British India had by and large, for a century of British rule, enjoyed the respect and confidence of the people for its high reputation of independence and impartiality. Nonetheless the framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence. In a land and among a people whose ancient values stemmed from truth as a reality, culminating in the adoption of a national emblem confirming that creed, they could have done no less.
868. It is pertinent to observe that the High Courts under our Constitution have been conferred far wider jurisdiction and powers than the High Courts under the Government of India Act, 1935. They enjoy not only the jurisdiction and powers existing before the commencement of the Constitution but by virtue of Article 226 they have been vested with power to issue directions, orders or writs to any person or authority, including any Government within their territorial jurisdiction, and that power is not limited, as it is in the case of the Supreme Court of India, to the enforcement of the rights conferred by Part III but extends to any other purpose. Moreover, by Article 227 of the Constitution the High Courts have been granted the superintendence not merely over all courts subject to their appellate jurisdiction but indeed over all courts and tribunals throughout their territorial jurisdiction. Further, unlike the Government of India Act the Constitution has not prohibited the High Courts from enjoying original jurisdiction in matters concerning the revenue or concerning any act ordered or done in the collection thereof. The framers of the Constitution evidently intended that the widest amplitude of remedial action should be available to every person throughout the territorial jurisdiction of the High Courts. So great was the anxiety to ensure that the Rule of Law reigned supreme in each State throughout India.
869. It is in this context that the questions raised before us may be considered.
The constitutional scheme concerning the High Courts:
870. The judiciary in India consists broadly of the Union judiciary, the High Courts in the States and the Subordinate Courts in those States. Chapter V of the Constitution deals with the High Courts and its present provisions may be briefly surveyed, Article 214 requires that there shall be a High Court for each State, and Article 216 with the Constitution of every High Court. Article 217 lays down the procedure for appointment of a Judge of the High Court, the circumstances in which the office of Judge is vacated, the qualifications for appointment, and how the age of a Judge shall be determined. Article 218 provides for the removal of a Judge from his office. Article 219 requires a Judge to make or subscribe an oath or affirmation before he enters upon his office. Article 220 places a restriction on practice after a person has been appointed permanent Judge. Article 221 provides for payment to the Judge of his salary and entitles him to certain allowances and rights, and the proviso declares that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. Article 222 empowers the President to transfer a Judge from one High Court to another in consultation with the Chief Justice of India. Article 223, 224 and 224A enable the appointment of an acting Chief Justice, additional Judges, acting Judges and provide for former Judges to sit and act as Judges. Article 225 defines the jurisdiction of existing High Courts and Article 226 extends the jurisdiction to the issue of directions, orders and writs. Article 227 vests in the High Court the power of superintendence over all courts and tribunals within its territorial jurisdiction. Article 228 empowers the High Court to transfer to itself cases pending in a subordinate court involving a substantial question of law as to the interpretation of the Constitution. Article 229 provides for the appointment of officers and servants of the High Court, and Article 230 for the extension of jurisdiction of the High Court to Union territories. Finally, there is provision by Article 231 for establishing a common High Court for two or more States or for two or more States and a Union Territory.
871. An important point to note is that Chapter V relating to the High Courts embodies a single organic scheme. The provisions of that scheme are inter-related and often inter-dependent, and in order to appreciate the true purpose, scope and content of any provision it is necessary to examine it in the context of the entire constitutional scheme. This is so, whether the question relates to the appointment of an additional Judge, or to the transfer of a Judge from one High Court to another.
The Constitution of the High Courts and the appointment of the Judges:
872. In a modern democracy the supreme power of the State is shared between the three principal organs, the Executive, the Legislature and the Judiciary, Each holds a distinct position in the overall constitutional scheme, and has broadly separate functions and responsibilities from those vested in the other organs, A Constitution deems the simultaneous co-existence and effective functioning of all three organs imperative to the proper working of the constitutional system. It envisages that all three organs should function continuously according to their true nature and responsibilities, so that in the totality the constitutional system is held in constant balance. The constitutional document itself has made full and detailed provisions for the Constitution of each of these primary organs of the State, so that at all times the constitutional system as a whole is in full operation.
873. Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Plainly, while the President is vested with the power to appoint Judges, he is also under a constitutional obligation to ensure that the High Court is fully constituted. It is fully constituted when it consists of Judges sufficient in number to regularly cope with and dispose of the work falling within its jurisdiction. From the terms of Article 216 it is also plain that the constitutional obligation imposed on the president extends to ensuring from time to time that the High Court consists of a sufficient number of Judges. The expression “from time to time” is significant. The responsibility imposed by Article 216 requires the making of a periodic review of the annual institution of cases and the pending strength of arrears resulting in a reasonable assessment of the number of Judges needed in each High Court. It may be observed that serious injury is possible to a constitutional democracy where this is not done, and the Judiciary remains insufficiently manned and pending cases continue to accumulate for long periods. A continuing imbalance in the proper operation of the constitutional system ranging over a long period of time by reason of one of its primary organs remaining ill-equipped to discharge its essential responsibilities cannot but be viewed with grave concern.
874. Article 216 speaks of Judges generally, A study of the constitutional scheme embodied in Chapter V indicates that as a general rule the appointment of permanent Judges is contemplated. They are Judges who are entitled to continue in office until they attain the age of 62 years, and whose tenure is fixed by the Constitution itself. They are appointed with reference to the normal workload of the court. A fixed tenure unaffected by the discretion of the executive safeguards the principle of judicial independence. In special circumstances, however, and in special circumstances only, the appointment of additional Judges or acting Judges is contemplated under Article 224. An additional Judge is appointed under Clause (1) of Article 224 where it appears to the President 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 that court should be for the time being increased. The number of Judges is increased only for the time being, and the appointment of an additional Judge is, therefore, envisaged for a limited period which, by Clause (1) of Article 224 must not exceed two years. An acting Judge is appointed under Clause (2) of Article 224 by the President 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, a person so appointed can act as a Judge only until the permanent Judge has resumed his duties, Both additional Judges and acting Judges must be appointed from among duly qualified persons, that is to say, the qualifications prescribed in Article 217, and they can not to appointed to hold office after attaining the age of 62 years. It will be seen therefore that Article 216 contemplates Judges who are permanent Judges, additional Judges or acting Judges, permanent Judges as a rule and additional Judges or acting Judges in exceptional or special circumstances. A separate and distinct category is that of former Judges of a High Court who under Article 224-A may be requested by the Chief Justice of a High Court, with the previous consent of the President, to sit and act as a Judge of the High Court, Such a person does not fall within Article 216, for he is not a Judge of the High Court when so sitting and acting. The President does not appoint him, but only gives his consent to the Chief Justice to request the former Judge to sit and act as a Judge of the high Court. The process appointment embodied in Clause (1) of Article 217 does not apply to him. It is for that reason the express provision has been made in Article 224-A itself that while sitting and acting as a Judge of the High Court the former Judge will be entitled to such allowances as the President may, by order, determine and he shall have all the jurisdiction, powers and privileges, but will not otherwise be deemed to be a Judge of that High Court.
875. It may be pointed out that the Constituent Assembly was not in favour of appointing additional or acting Judges, and although in the Draft Constitution prepared by the Drafting Committee provision was made by Article 198 for the appointment of temporary Judges and by Article 199 for the appointment of additional Judges, there was strong opposition to their inclusion and those provisions were omitted when the Constitution was finally enacted.
The Draft Constitution provided by Article 200 that the Chief Justice of a High Court could request a former Judge of that court to sit and act as a Judge of the Court. The provision was retained in the enacted Constitution as Article 224, with this difference that before making such request the Chief Justice had to obtain the previous consent of the President and further his choice extended not only to a former Judge of that High Court but also to that of any other High Court. Apparently, it was felt that by enacting Article 224 there was no need to provide for the appointment of temporary or additional Judges. It was subsequently found that the arrangement was not adequate, and for that reason the Constitution (Seventh Amendment) Act, 1956 brought in the present Article 224 providing for additional Judges and acting Judges and simultaneously deleted the original provisions respecting former Judges, However, the need for former Judges continued to be felt, and the provision was reproduced by the Constitution (Fifteenth Amendment) Act, 1963 and was numbered as Article 224-A.
876. The procedure for appointing a Judge of a High Court is set forth in Clause (1) of Article 217. A Judge of a High Court is appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. The appointment of a Judge is an executive act. The power to appoint is vested in the President, who by virtue of Clause (1) of Article 74 is required to act in accordance with the advice of the Council of Ministers, The President may require the Council of Ministers to reconsider such advice, either generally or otherwise, but he must act in accordance with the advice tendered after such reconsideration. The nature of the power exercised by the President under Clause (1) of Article 217 being executive in character, it cannot be identified with the power exercised under Clause (3) of Article 217 in regard to the determination of the age of a Judge of a High Court. The power exercised under Clause (3) of Article 217 has been held by this Court in Union of India v. Jyoti Prakash Mitter to involve a judicial function and which therefore does not fall within the scope of Clause (1) of Article 74.
877. While there can be no doubt that the appointment of a Judge of a High Court lies in the executive power of the President, it is not an absolute and unfettered power. It is conditioned by the obligation imposed on the President to consult the Chief Justice of India, the Governor of the State, and in the case of an appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, The consultation is a constitutional imperative and the process of consultation must precede the appointment. Three, constitutional functionaries are required to be consulted, the Chief Justice of India and the Chief Justice of the High Court, who are judicial functionaries, and the Governor of the State who is the executive head of the State in respect of which the High Court has jurisdiction. In this, Clause (1) of Article 217 makes a marked departure from Section 220, Government of India Act, 1935, Under Section 220, a permanent Judge of a High Court was appointed in the absolute discretion of the Crown, and the additional Judges appointed in the absolute discretion of the Governor General. In practice, of course, the Chief Justice of the High Court was usually consulted, as well as sometimes a few eminent leaders of the Bar who would not be interested in the appointment. But when the Constitution was being drafted there was general agreement that the appointment of a Judge of a High Court should not be left to the unfettered discretion of the Executive Government. The Constitution itself now imposed the obligation to consul Judicial independence under the Government of India Act, 1935 had been assured by prescribing a fixed tenure under Sub-section (2) of Section 220, and a Judge could not be removed from his office except on the ground of misbehaviour or of infirmity of mind or body and on a report by the Judicial Committee of the Privy Council that the Judge ought to be removed. There was the further stipulation by the proviso to Section 221 that neither the salary of a Judge nor his rights in respect of leave of absence or pension could be varied to his disadvantage after his appointment. Now, the independence of the judiciary can be fully safeguarded not by merely conferring security on the Judges during their term of office but by ensuring in addition that persons who are independent, upright and of the highest character are appointed as Judges. Moreover, there is always the fear that appointments left to the absolute discretion of the appointing executive could be influenced by party considerations. The framers of the Constitution apparently had this in mind when they decided to incorporate the prescription of consultation in the terms set forth in Clause (1) of Article 217, As Sardar Vallabhbhai Patel explained in the Constituent Assembly on June 21, 1947 when presenting the Report on the Principles of a Model Provincial Constitution:
With so many checks and counterchecks these appointments place the High Court Judges beyond any influence of the parties or any other influences and beyond any suspicion or doubt of such to nature. There is thus enough guarantee provided for the independence of the Judiciary. (Constituent Assembly Debates Vol. IV p. 694).
878. As has been observed, Clause (1) of Article 217 prescribes that besides the Governor of the State, the Chief Justice of India and the Chief Justice of the High Court must be consulted in the appointment of a Judge of a High Court, Three distinct constitutional functionaries are involved in the consultative process, and each plays a distinct role, and the nature and scope of the role are indicated by the character and status of their respective offices. The Chief Justice of the High Court is the head of the institution to which the Judge will be appointed. He is, therefore, particularly qualified to know the needs of the court in the context of its present Constitution and the work which is pending. Generally, an appointment is made either from the High Court Bar or from the District Judiciary. In both cases, the Chief Justice can be expected to possess an intimate knowledge of the legal ability of the person under consideration and to have a sufficiently accurate estimate of his character, antecedents and reputation, including his integrity, in the context of the legal profession or the judicial service, as the case may be, as well as his potential capacity as a Judge. It is also conveniently possible for him to obtain a fair measure of information in respect of a member of a District Bar, should such a member be under consideration. In regard to persons practising in other courts or members of judicial tribunals it is not difficult for him to secure adequate information. It is apparently for this reason that the practice which has prevailed for several years in this country postulates that it is the Chief Justice of the High Court who should initiate the process of appointment by suggesting a person for the office of a Judge. But by virtue of his position in the High Court and the State, the Chief Justice is also exposed to local influences, and to prejudice or bias in relation to lawyers appearing before him or judicial officers who meet him. His assessment can be subjectively effected. The Chief Justice of India has been brought in, and it is apparent that, in virtue of the exalted office held by him and the circumstances that he is far removed from the local pull of influences and the temptations of partisanship, he can be trusted to apply a strictly objective approach to the recommendation proceeding from the High Court. Besides, the Chief Justice of India possesses the advantage of viewing the matter from the superior plane of a national perspective, He is seized with knowledge of prevailing standards and trends in the different High Courts, and as the head of the highest court in India exercising appellate jurisdiction over the High Courts by way of the widest power under Article 136 he would be cognizant of the need to ensure that the highest quality was maintained in the appointment, of Judges of the High Courts. Indeed, he is expected by the Constitution to keep himself adequately informed of the affairs of each High Court. For it is not merely for the purpose of appointing a Judge to the High Court under Clause (1) of Article 217 that he is to be consulted. The president is also obliged to consult him before he can transfer a Judge under Clause (1) of Article 222 from one High Court to another High Court, a matter in which the Constitution does not expressly stipulate consultation even with the Chief Justices of the two High Courts concerned, the High Court from which the Judge is to be transferred and the High Court to which his transfer is contemplated. It must also be remembered that in the determination of the age of a Judge of a High Court under Clause (3) of Article 217 it is the Chief Justice of India alone whom the President is required to consult.
879. The part played by the Governor of the State must, it seems, be limited. The State Government possesses the advantage of being able to secure information which may not be within the knowledge of the Chief Justice in regard to the character and integrity of the person recommended and his local position and affiliations. Besides, as the High Court is the highest court of the State and the funds for it flow from the State Exchequer, it is only logical that the State Government should be allowed a voice in assessing the suitability of the person recommended for appointment (Law Commission of India, Fourteenth Report Vol. 1, p. 74). The State Government, however, can have no role in commenting on his legal ability, knowledge of law and judicial potential.
880. The President is obliged to consider the advice tendered by the, three constitutional functionaries under Clause (1) of Article 217, and in the evaluation of the advice from each he must bear in mind that the appointment under consideration is the appointment of a Judge of a High Court, that is to say, a judicial appointment. Once that is kept in the forefront and it is apparent that the person recommended is of desirable personal character and reputation, the greatest value should be attached to the advice tendered by the Chief Justice of the High Court and the Chief Justice of India. The advice tendered by the two judicial functionaries possesses a quality peculiarly pertinent to the appointment of an able and efficient Judge. It is, in a sense, “expert” advice, and where the Chief Justice of the High Court and the Chief Justice of India agree on the recommendation it is within reason to hold that the President will ordinarily accept the recommendation, unless there is strong and cogent reason for not doing so, which must be a reason directly relevant to the purpose of the appointment. It may be reiterated that the departure made by Clause (1) of Article 217 of our Constitution from Section 220 of the Government of India Act, 1935 clearly establishes that the advice tendered by the judicial functionaries was considered to be a safeguard against arbitrary appointments and therefore entitled to the greatest weight, It may be pointed out that appointments in England to the Court of Appeal, to the Judicial Committee of the House of Lords and to the offices of Lord Chief Justice, and President of the Family Division are made on the advice of the Prime Minister after consultation with the Lord Chancellor, and the likelihood that the Prime Minister may depart from the recommendations of the Lord Chancellor can be contemplated “only in the most exceptional case.” (J.A. G. Griffith; The Politics of the Judiciary, pp. 17, 18).
881. At the same time I am unable to accept the contention that as the Constitution stands today the President is obliged in all cases to agree with a recommendation in which the Chief Justice of the High Court and the Chief Justice of India have concurred. During the Constituent Assembly Debates a proposal was made by a member that the appointment of Judges should require the concurrence of the Chief Justice of India (although that suggestion was made in connection with the appointment of Judges of the Supreme Court), but that proposal was not accepted. The Law Commission of India (Ibid p, 76) surveyed the machinery for appointing a Judge of a High Court and considered it desirable that the provision in Clause (1) of Article 217 should be altered to provide for “not merely consultation with the Chief Justice of India but his concurrence in the proposed appointment”, That recommendation has not borne fruit and we are concerned with the position which prevailed then and continues today.
Does the advice given by the Chief Justice of India have primacy over that rendered by the Chief Justice of the High Court?
882. A point has been raised whether on difference of opinion between them the advice of the Chief Justice of India can be said to enjoy primacy over that tendered by the Chief Justice of the High Court, Nothing is laid down on the matter in express terms in Clause (1) of Article 217. If by “primacy” is meant that the opinion of the Chief Justice of India supersedes that of the Chief Justice of the High Court and can alone be considered, it is clearly against the provisions of Clause (1) of Article 217, for the clause intends that the President should consult both Judicial functionaries, besides the Governor, The advice of each, the Chief Justice of India and the Chief Justice of the High Court, has to be considered by the President. The Chief Justice of India does not sit in appellate judgment over the advice of the Chief Justice of the High Court, and the fact that the former has given his advice cannot imply that the advice of the latter must be ignored But it must be remembered that the advice by the Chief Justice of India takes into account not only the primary material before him but also the assessment made by the Chief Justice of the High Court, and therefore when he renders advice the assessment by the Chief Justice of the High Court has also been considered by him. In other words, in forming his opinion and giving his advice, the Chief Justice of India will take all the facts and circumstances into consideration, including the material circumstance that the advice of the Chief Justice of the High Court is the advice of an authority possessing the advantage of direct and intimate knowledge of the requirements of the Court and generally also of the person recommended, and thereafter he will advise whether he endorses the recommendation. In that sense, it can be said that the recommendation of the Chief Justice of the High Court is screened through the assessment made by the Chief Justice of India. The screening is a logical result of the Chief Justice of India being brought in to express his opinion in the recommendation. In passing, it may be observed that if any material comes into the possession of the Chief Justice of India which was not before the Chief Justice of the High Court it should be communicated to the Chief Justice of the High Court for his comments. When the advice of the Chief Justice of the High Court and of the Chief Justice of India is placed before the President, the President will consider both and assess them in the light of the positions held, and the advantages possessed, by the respective functionaries in relation to the recommendation, and also bear in mind that while the Chief Justice of the High Court has the advantage of proximity in relation to the High Court and generally in assessing the ability and efficiency of the person recommended, the Chief Justice of India enjoys the advantageous position of being able to apply a more objective judgment and also of taking into account a national perspective and present standards and trends in other High Courts, In the ultimate analysis, it would be unrealistic to suppose that the advice rendered by the Chief Justice of India enjoys mere parity with that of the Chief Justice of the High Court. If the Chief Justice of India was intended to enjoy equal status merely with the Chief Justice of the High Court in this regard, it is difficult to appreciate why the Chief Justice of India was brought in at all especially when the advice expected of a judicial functionary for appointing a Judge of a High Court could be obtained from the Chief Justice of the High Court alone. The constitutional scheme appears to indicate that in matters concerning the High Courts there is a close consultative relationship between the President and the Chief Justice of India. In matters so serious as transfer of Judges and the determination of the age of judges, the Constitution has appointed the Chief Justice of India as the sole functionary to be consulted by the President. In that capacity, the Chief Justice of India functions under the Constitution as a constitutional check on the exercise of arbitrary power and protects the independence of the Judiciary.
The position relating to Additional Judges specifically:
883. It has been observed earlier that a High Court is intended under Article 216 to consist of permanent Judges as a rule. That would accord with the principle of judicial independence because thereby security of tenure is provided. The permanent Judges must be in sufficient number to cope with the usual work of the High Court. There may, however, be exceptional circumstance, prevailing over a brief period, which may call for a temporary accretion to the number of Judges. Provision is found in Article 224 for meeting the exigency. The President has power to appoint additional Judges and acting Judges depending on the nature of the exigency. Clause (1) of Article 224 deals with the appointment of additional Judges, and it is this provision with which we are immediately concerned. An additional Judge may be appointed where by reason of the 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 Judges should for the time being be increased. The two conditions control the exercise of the power, and it neither is satisfied there can be no case for appointing an additional Judge. The increase in the business of the High Court must be temporary and should be capable of being disposed of within a short period. Likewise, the arrears of work should be such that they cannot be expected to endure long. Inasmuch as the period of appointment of additional Judges is prescribed as a maximum of two years, it is only where the disposal of the temporary increase in the business of the High Court or the pending arrears of work is expected to take about two years at the most that a case for appointing additional Judges arises. If the increase in the business of the High Court or the volume of arrears of work is of a magnitude which cannot ordinarily be disposed of within two years, it is a case where the business or work must be regarded as an accretion to the regular business or work of the High Court, calling for an increase in the strength of permanent Judges. A person appointed an additional Judge under Clause (1) must be a “duly qualified” person. He must be duly qualified for appointment as a Judge, the qualifications being those prescribed in Article 217, The appointment of an additional Judge, like the appointment of a permanent Judge, must be made in the manner prescribed in Clause (1) of Article 217, The appointment of the additional Judge like the appointment of the permanent Judge, must be made in the manner prescribed in Clause (1) of Article 217. The process of consultation contemplated by that clause comes into play, and it is only after his suitability has been determined in accordance with that clause that the additional Judge is appointed. An additional Judge discharges functions of the same character as a permanent Judge, There is no difference whatever between the two in status and the other incidents of office, except that an additional Judge can hold office only for the period specified in the warrant of his appointment. There is nothing in Clause (1) of Article 224 to suggest that the temporary increase in the business of the High Court or the pending arrears of work can alone be entrusted to additional Judges. All that the clause provides is that either or both conditions can constitute a reason for temporarily increasing the number of Judges of the High Court. Which work should be assigned to permanent Judges and which to additional Judges is a matter normally falling within the discretion of the Chief Justice of the High Court. It was observed by this Court in Krishan Gopal v. Prakash Chandra that “election petitions should ordinarily, if possible, be entrusted for trial to a permanent Judge of the High Court”. But that was a mere expression of policy for the court affirmed that they “are legally competent to hear these matters”. It may be that despite the appointment of a reasonable number of additional Judges, the temporary increase in the business of the High Court or the pending arrears of work may not be disposed of within a period of two years and may continue for a few more months. There is reason to expect that the person found fit for appointment as additional Judge and who has already gained proficiency and experience will be appointed as a Judge for a further period in order that the work may be disposed of and not allowed to remain pending.
884. In passing, it may be observed that the period prescribed by Clause (1) of Article 224 for the appointment of an additional Judge is put at a maximum of two years, but that does not mean that in every case the appointment must be for two years. The appointment of an additional Judge may be for a period less than two years, and the period will be determined with reference to the time estimated for disposing of the temporary increase in the business or the pending arrears of work which occasioned the appointment. The period of appointment cannot be fixed on the basis of any other factor. Where, as observed earlier, the work or business is not completed within two years and calls for a further appointment of additional Judges, the duration of the further appointment will be conditioned again by the time assessed for disposing of the remaining business or work. But it is to be distinctly borne in mind that additional Judges can be appointed only where the temporary increase in the business of the High Court or the arrears of work can be expected to be disposed of within a period of two years and not very much more. If additional Judges are appointed for successive periods of two years or more it is clearly a case where the increase in the business of the High Court or the volume of the arrears of work does not call for the appointment of additional Judges but for a review of the number of permanent Judges. Appointments of additional Judges for successive periods of two years or more constitute a violation of the safeguard afforded by the appointment of permanent Judges for the protection of the principle of judicial independence.
885. It appears that for several years now a practice has grown, to which both the Executive and the Judiciary have unwittingly subscribed, of maintaining a regular strength of additional Judges and generally appointing a person as an additional Judge of the High Court instead of appointing him directly as a permanent Judge of the High Court. The additional Judge so appointed continues as an additional Judge, until a vacancy in the office of permanent Judge arises, whereupon such person is appointed as a permanent Judge. If no vacancy arises before the expiry of the term of the additional Judge he is appointed an additional Judge for a further term. A regular strength of additional Judges is maintained in almost every High Court which is burdened by a continuing backlog of pending cases. These arrears have assumed enormous proportions and cannot possibly be disposed of for quite some years, let alone a period of two years. A distortion of the constitutional scheme has resulted, and the aberration has persisted by reason of the failure to realise that additional Judges can be appointed only where the temporary increase in the business or the arrears of work can be disposed of ordinarily within two years, and that otherwise it is a case for increasing the number of permanent Judges. The omission has led to a serious state of affairs, which has affected the careers and future of a large number of persons appointed as additional Judges in the High Courts, Having decided to maintain a regular strength of additional Judges on a permanent basis the practice also grew of invariably appointing these additional Judges as permanent Judges as and when vacancies arose. That was principally prompted by the disinclination to permit additional Judges on the expiry of their terms as such, to revert to the Bar. It must be remembered that when the Draft Constitution including Article 199 providing for additional Judges was submitted for consideration there was strong opposition to the inclusion of that provision. Several legal luminaries, including Sir Tej Bahadur Sapru objected to it on the ground that such reversion to legal practice gave them an unfair advantage over their colleagues and was embarrassing to the administration of Justice. Therefore, the Constitution as originally enacted did not contain any provision for the appointment of additional Judges. Subsequently, how ever, because of persisting arrears of cases in most High Courts, the need was felt for making such provision and it was inserted as Clause (1) of Article 224 by the Constitution (Seventh Amendment) Act, 1956. It was thought that the evil of additional Judges reverting to the Bar Could be prevented by absorbing them as permanent Judges, and in some High Courts this was sought to be secured by obtaining from persons appointed as additional Judges an undertaking at the time of such appointment that they would not refuse appointment as permanent Judge if it was offered to them. In a few High Courts a further undertaking was secured to the effect that; in the event of the additional Judge refusing appointment as permanent Judge or resigning before the offer was made he would not practice in that High Court or in any Court or tribunal subordinate to it. It was intended that this practice should be extended to all High Courts, for a suggestion was made on June 29, 1967 by the then Chief Justice of India, Shri K.N. Wanchoo, when a member of the Bar is appointed Additional Judge, it must be with a view to making him permanent in due course, If that is not possible, additional Judge-ship should not be offered to a member of the Bar. I agree, therefore, that an undertaking should be taken from the members of the Bar that they will accept a permanent Judgeship when offered to them in due course….” The practice of additional Judges being appointed permanent Judges, the seniormost additional Judge being invariably appointed first, has been followed in India almost without exception. Where no present vacancy of permanent Judge was available, the additional Judge was, on the expiry of his term, always appointed for a further term as additional Judge. We are informed that of 400 such appointments pf additional Judges as permanent Judges the practice has been breached in the observance on two or three occasions only. This practice has been uniformly and consistently followed and has crystallised into a positive rule of conduct. It is a rule of conduct followed by the Government regularly and without interruption, almost entirely without exception, and has operated consistently for twenty five years on the basis of precisely defined norms in respect of a general class. And it flows from the power of the State. It prescribes a channel of appointing Judges and is not inconsistent with Clause (1) of Article 217. So long as it is not varied or superseded, it will operate as a binding rule of conduct on the President. On that edifice rests the definite expectation of a large number of additional Judges. It may foe added that during this period direct appointments from the Bar as permanent Judges have numbered 100 only. In the circumstances, the question which arises is: Are the additional Judges entitled to claim appointment as permanent Judges?
886. It is contended that as the volume of arrears of cases pending in the High Courts is so great that they cannot be disposed of within a period of two years, the position is that when the additional Judges were appointed the appointment should have been instead to the office of permanent Judges. Alternatively, it is urged that a direction should be issued to the President to appoint the additional Judges as permanent Judges. Now the warrant of appointment issued by the Prudent recites that the appointment is of an additional Judge for the limited period specified therein. The intention was to appoint an additional Judge and for the period specified. It is not open to the Court to alter the terms of the warrant. Although it may be generally possible to say that the circumstances require an increase in the number of permanent Judges and not the appointment of additional Judges, it is for the President under Article 216 to determine what should be the number of permanent Judges. The Court cannot by Judicial verdict decide how many permanent Judges are required for the High Court, And if it is not competent to do so, it can neither regard the appointment of additional Judges as an appointment of permanent Judges nor can it issue a direction to the Government that the additional Judges should be appointed now as permanent Judges.
887. But while an additional judge may not have a right to be deemed to be permanent Judge or be entitled to a direction that he be so appointed, nonetheless he has, in my view, a right to be considered for such appointment. His case must be distinguished from the case of a person considered for direct appointment as a permanent Judge. The latter has no right to be considered for appointment. The additional judge, however, has accepted office within the framework of a definite and consistent practice practically always followed and leading him to believe that he would be considered for appointment in accordance with that practice, Tha requirement of an undertaking that he would not refuse an offer of appointment as permanent judge may, it is true, be a feature presently in some High Courts only, but it clearly demonstrates how the appointment of additional judges has been regarded by the President. It cannot be said that because the undertaking was required in some High Courts only, these High Courts are to be considered to be distinct from the others where no such undertaking has been required. The undertaking merely confirms the practice on the basis of which the appointments of additional judges have been made in all the High Courts and which has been followed all along. The additional judges are persons who were found to possess the same high order of character, integrity and legal ability as is required in the case of permanent Judge. The standards for making appointment as additional Judge or as permanent Judge are not different. All the additional Judges accepted judicial office on the assumption that the practice clothed with all the status of constitutional reality would operate in their cases and that they would in their turn be considered for appointment as permanent Judges. All of them certainly believed that inspired by that trust, they abandoned their positions at the Bar and law practices assiduously built up over many years. As observed already, there is nothing in the power of appointment vested in the President under Clause (1) of Article 217 to prohibit the appointment of permanent Judges from persons holding office as additional Judges, and in the order of seniority based on the date of such appointment. It has been stated by the learned Attorney General that the Government places great value on the experience already acquired by the additional Judges and would be reluctant to allow them to revert to the Bar if on consideration they were found suitable for appointment as permanent Judges. In my view, having regard to all the circumstances the additional Judges must be held entitled to consideration for appointment as permanent Judges, or to consideration for further appointment as additional Judges in the terms already set forth. That will be so in the case of all additional Judges appointed to that office in the framework of the circumstances to which I have adverted.
888. The next question to be considered is whether the consideration of persons serving as additional Judges for appointment to the office of permanent Judges envisages a fresh application of the process envisaged under Clause (1) of Article 217 in respect of all the matters to which consideration has already been given at the time of their appointment as additional Judges. On behalf of the petitioners it is contended that the process of consultation must be confined to the question whether a vacancy in the office of permanent Judge has arisen, or, if no such vacancy has arisen, whether the High Court continues to suffer from a temporary increase in its business or by continuing arrears of work inasmuch as suitability for holding the office of Judges was already been determined when they were appointed additional Judges. It is pointed out, and that is conceded by the learned Attorney General, that the additional Judges cannot be considered to be Judges on probation for the purpose of appointment as permanent Judges. Alternatively, it is urged that whatever else may be open to consideration it is not competent for the appointing authority to consider the manner and quality of their work as additional Judges. To my mind, there is no doubt whatever that the provisions of Clause (1) of Article 217 come into play when an additional Judge is to be considered for appointment as permanent Judge or even for further appointment as additional Judge. The process involves the consideration of all the concomitant elements and factors which entered into the process of consultation at the time of appointment earlier as an additional Judge, but it may be clearly stated that no account can be taken of the merits of judgments, decrees and orders rendered by him or administrative orders or directions made in the bona fide exercise of his functions as an additional Judge. In the consideration of matters under Clause (1) of Article 217 there will be a somewhat varied approach. The difference, and inevitably there will be a difference because the process has already been applied earlier in the case of that person, will lie in the reduced emphasis with which the consideration will be exercised. Ordinarily, the presumption will be that a person found suitable for appointment as an additional Judge continues to be suitable for appointment as a permanent Judge. But circumstances may arise and events may take place meanwhile which bear adversely on the mental and physical capacity, character and integrity or other matters rendering it unwise to appoint him as a permanent Judge. There must, however, be relevant and pertinent material before it can be said that such a person has forfeited the badge of suitability for appointment as a permanent Judge. There must be material which sufficiently convinces the reasonable mind that the person is no longer suitable to fill the high office of a judge. It is difficult to define precisely the nature and quality of such material. If the reputation of the person is in doubt, the doubt must be rooted in reasonable foundation. It must not be forgotten that it is a case of a person who has a right to be considered for appointment. It is a right to be considered fairly. The exercise of arbitrary judgment is clearly ruled out. While I find it difficult to accept the plea that such a person is entitled as of right to be heard in regard to material discovered against him, I have no doubt that for the purpose of discharging responsibilities involved in the process of consultation the Chief Justice of the High Court and the Chief Justice of India will find it desirable in their discretion to ascertain from him whether there is any substance in what has been conveyed to them. In doing so, the two judicial functionaries will not be conceding a right of hearing to such a person. For a right to be heard involves an enquiry of certain dimensions well known to the law. In doing so, the two judicial functionaries will be acting within the scope of their legitimate duty of giving advice to the President if for that purpose they acquaint themselves fully and truly, so far as they reasonably conceive it necessary to collect all available relevant information. Surely if it is open to them to gather information from other sources there is no valid reason why they should exclude the one person who would be in personal possession of material concerning information operating to his detriment. But much will depend on the circumstances of each case. What needs to be considered is that the constitutional duty to tender advice necessarily involves the obligation of ensuring that the advice, in the judgment of the functionary tendering it, is accurate and proceeds on the basis of reliable material. Whatever verification is possible, there is no doubt that recourse should be had to it There can be no half measures, and in the discharge of that constitutional duty the response must be equal to the responsibility.
889. There is the contention that if the consultative process under Clause (1) of Article 217 applied again in all its comprehensiveness in the case of a person who has already been found suitable for appointment as additional Judge, it must be regarded that while serving as additional Judge he was in fact put on probation. The submission appears to be misconceived. A person is on probation when he is appointed to an office on the understanding that he will be confirmed in that same office if found suitable. No such question arises here. Then, the service of a person on probation can be terminated at will even before the expiry of the period of probation. An additional Judge, however, is entitled to serve for the full period specified in his appointment, and can be removed only under Article 218 read with Clause (4) and Clause (5) of Article 124.
The case of Shri S.N. Kumar:
890. I shall now consider the validity of the decision of the Union Government not to appoint Shri S.N. Kumar as an additional Judge for a further term. It is the admitted position that the volume of work in arrears in the High Court of Delhi continues to be sufficiently large and would nave otherwise justified his appointment. It has been observed already that when, on the expiry of his term, an Additional Judge is considered for a further term in that office his case attracts the provisions of Clause (1) of Article 217, and the President must consult the functionaries mentioned in that clause. In the case of the High Court of Delhi, consultation is called for with the Chief Justice of India and the Chief Justice of the High Court only. The consultative process, it may be reiterated, requires that all the material in the possession of the Chief Justice of the High Court must be placed before the Chief Justice of India as well as the President. Likewise, all the material in the possession of the Chief Justice of India must be placed before the President and the Chief Justice of the High Court. So also, all the material in the possession of the President must be placed before the Chief Justice of India and the Chief Justice of the High Court. A continuous process of consultation between all three authorities is mandated, resulting ultimately in advice tendered to the President by the Chief Justice of the High Court and the Chief Justice of India. It is not necessary for me to enter into the other questions raised in the challenge directed against the decision of the Union Government not to appoint Shri S.N. Kumar as an additional Judge for a further term. It seems to us sufficient to say, on a review of the material before me, that there was no effective and full consultation between the President and the Chief Justice of the High Court on the one hand, and the Chief Justice of India on the other. The facts may be recounted briefly.
891. Shri S.N. Kumar was appointed an additional Judge of the High Court of Delhi for a period of two years by a notification dated March 6, 1979, and he assumed charge of his office the next day. Shortly before the expiry of that period, the Chief Justice of the High Court of Delhi addressed a letter dated February 19, 1981 to the Minister of Law, Justice and Company Affairs stating that while the pendency of cases in the High Court justified the appointment of additional Judges and normally the extension of the tenure of an additional Judge was recommended in the circumstances, he did not recommend the extension of Shri S.N. Kumar because, he said, serious complaints had been received, both oral and in writing, against him directly by the Minister as well as himself, that he had examined those complaints and found that some of them were not without basis, that responsible members of the Bar and some other colleagues had also complained about Shri S.N. Kumar and that although he had no investigating agency to enquire conclusively into the genuineness of the complaints, the complaints had been persistent. It was also pointed out that Shri S.N. Kumar had also not been helpful in disposing of cases. Finally, it was said, some responsible members of the Bar as well as some colleagues expressed some doubts in regard to Shri S.N. Kumar’s integrity. A copy of the letter was sent to the Chief Justice of India. On March 3, 1981, the Chief Justice of India expressed a desire to look carefully into the charges against Shri S.N. Kumar and pointed out that the letter of the Chief Justice of the High Court appeared to be too vague to persuade one that Shri Kumar lacked integrity. The Chief Justice of India recommended that Shri Kumar be appointed for a further period to enable him to make an enquiry into the matter meanwhile. Shri Kumar was reappointed as an additional Judge with effect from March 7, 1981 for a period of three months. On March 19, 1981, the Law Minister wrote to the Chief Justice of the High Court drawing his attention to the observations of the Chief Justice of India that the letter dated February 19, 1981 sent by the Chief Justice of the High Court appeared to suffer from vagueness and it was therefore difficult to accept that Shri Kumar lacked integrity. It appears that the Chief Justice of the High Court met the Chief Justice of India and discussed the case of Shri Kumar with him. On March 28, 1981 he wrote to him confirming that “with regard to the complaints about Justice Kumar’s integrity and general conduct, the matter has already been discussed between us.” On the same day the Chief Justice of the High Court wrote to the Law Minister enclosing a copy of his letter to the Chief Justice of India and he informed the Law Minister that he had had “an opportunity to discuss the entire matter in detail with the Chief Justice of India.” He added:
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.
In reply, the Law Minister wrote back on April 15, 1981 to the Chief Justice of the High Court pointing out that “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 and recommended that he may not be continued. 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.” Quite evidently, the Law Minister intended that the material should be available to the Chief Justice of India also, so that all the material should be considered by both of them. Thereafter, the Chief Justice of the High Court wrote a letter D.O. No. 296-HCJ/PPS dated May 7, 1981, bearing the caption “SECRET (For Personal Attention Only)” and- reading as follow:
Dear Mr. Minister, I am in receipt of your D.O. No. 50/2/ 81-Jus. dated 15th April, 1981.
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.
In the first half of 1980, Justice Kumar was sitting singly and was doing mostly Original Side matters but also some Appellate Side matters. Chance remarks came to my knowledge about his conduct in Court as well as about his integrity* Somewhere early in May, 1980 one of my colleagues met me and said that he was rather perturbed about 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. I had not paid much attention to the earlier reports but when this was brought to my notice, and I was at that time not the Chief Justice, I thought to myself that after the summer vacations, to save Justice Kumar from any embarrassment, he should be put on a jurisdiction other than original jurisdiction. Therefore, when as Acting Chief Justice I constituted the Benches for the second half of 1980 I put Justice Kumar in a Division Bench to sit on the Appellate Side and Writ Jurisdiction. In my view this was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge. Surprisingly enough, Justice Kumar did not release the original suits, regarding which allegations had been made, from his board and continued to deal with these suits even in the second half of 1980. These suits were Suit No. 1409 of 1979, Suit No, 1417 of 1978 and Suit No. 1408 of 1979 filed by Jain Sudh Vanaspati Ltd., and Jain Export Pvt. Ltd., against the New India Assurance Co. Ltd. In August, 1980, the same colleague of mine who talked to me earlier and another colleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis-a-vis the aforesaid cases and some others. Since I was only acting as Chief Justice at that time, I did not want to take any precipitate action. I, however, made discreet inquiries from some of the leading counsel and they in strict confidence supported the allegations, This made me look into the matter more carefully when to my astonishment I 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. There is fairly a long list of these cases. In some of these the parties involved were rich and influential including some former princes. After I was appointed Chief Justice early in January, 1981, I looked into this matter a little more deeply and made further inquiries. Some of the lawyers were non-committal and understandably so. Others, however, asserted with some force that Justice Kumar’s reputation was not above board. I talked to some of my other colleagues besides the two who had earlier spoken to me. They also said that unconfirmed reports have been circulating in the Bar which were not very complimentary to Justice Kumar, This made me 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 a integrity is first as important as person actually being above-board.
Then followed reference to a complaint made by one Mr. Sabir Hussain, advocate and some data concerning the disposal of cases by Shri S.N. Kumar as well as allegations about some incidents in his Court concerning his conduct towards counsel.
892. Some days after receiving this letter of May 7, 1981 from the Chief Justice of the High Court, the Law Minister recorded a note on May 19, 1981 mentioning therein that before issuing the letter the Chief Justice had requested him to treat it as a secret document confined to his personal attention, and that he had given certain reasons for wanting it treated so. The Law Minister sought advice from his Secretariat whether the communication of the letter to the Chief Justice of India was unavoidable. This indicates that the Law Minister was not decided, when he received the letter, whether he should withhold it from the Chief Justice of India. It is not apparent what advice he received from his Secretariat, but it seems that he ultimately decided to honour the request of the Chief Justice of the High Court to keep the document secret. It appears that neither the Law Minister nor the Chief Justice of the High Court did ever inform the Chief Justice of India of this letter Of May 7, 1981 and of its contents. A perusal of the subsequent correspondence confirms that to be so, and indeed that was affirmed by the Law Minister in his letter of May 29, 1981 addressed to the Chief Justice of the High Court.
893. On May 27, 1981 the Law Minister recorded a note in which inter alia he said:
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 7-5-81. This presumption is raised on the basis of the letters from the Chief Justice, Delhi.
He went on to observe that on the question of the integrity of Mr. Justice Kumar, the views of the Chief Justice of the High Court be preferred because he had the advantage of watching the work and conduct of the Judge.
894. The first point to consider here Is whether the information contained in the letter dated May 7, 1981 of the Chief Justice of the High Court was ever made known to the Chief Justice of India. There is no dispute that the Law Minister, in deference to the wishes of the Chief Justice of the High Court, did not communicate that information to the Chief Justice of India. The dispute centers on whether the Chief Justice of the High Court had ever conveyed the particular information to the Chief Justice of India. In my view, he never did so. There were no doubt meetings between the Chief Justice of India and the Chief Justice of the High Court when the question relating to the integrity of Shri. S.R. Kumar was discussed. Originally, the Chief Justice of the High Court had spoken in the most general terms of complaint against the Judge. It seems that subsequently on March 26, 1981 the Chief Justice of the High Court told the Chief Justice of India that he doubted the integrity of Shri S.N. Kumar 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.” This was mentioned in the letter dated May 22, 1981 written by the Chief Justice of India to the Law Minister. The Chief Justice of India understood the allegation in its limited scope, that is to say that Shri S.N. Kumar was committing an irregularity in retaining original jurisdiction, part heard cases before him when he was now sitting on the appellate side. In the same letter he said:
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….
and observed that it appears to be common practice in the Delhi High Court that even after the Judge was moved from the original side to the appellate side he continued to take up part-heard cases on which a substantial amount of time had already been spent. The Chief Justice of India concluded that in the circumstances Shri Kumar could not be said to have done anything out of the way in taking up part-heard cases even after the allocation of work was changed. The affidavit of Shri S.N. Kumar discloses that an enquiry was made of him by the Chief Justice of India on why he continued to deal with original work while sitting on the appellate side, and in this connection he specifically refers to the three suits clearly mentioned in the letter dated May 7, 1981 of the Chief Justice of the High Court. There is nothing to suggest that the Chief Justice of India was ever apprised of the much more serious allegations contained in the letter of May 7, 1981 insinuating that the parties in these suits and in certain other cases, which as part-heard cases were said to have been retained by Shri Kumar for hearing, were rich and influential persons and that the Chief Justice of the High Court had “made discreet enquiries from some of the leading counsel and they in strict confidence supported tha allegations and that this was the material which led to doubt on the integrity of the Judge. This material was certainly very grave, much more than the mere allegation that the Judge was continuing to hear part-heard suits which, without anything more, could have been regarded at the worst as a mere irregularity. It took on a different complexion when considered in the light of the more damaging allegations made in the letter of May 7, 1981. I do not find anything on the record from which it can be presumed that this material was ever conveyed by the Chief Justice of the High Court to the Chief Justice of India. When all the correspondence and the affidavits on the record before us are considered together, that appears to be the only conclusion. It is strengthened by the insistent request of the Chief Justice of the High Court to the Law Minister that the letter of May 7, 1981 should not be disclosed to the Chief Justice of India.
895. What is the effect of that omission? It is clear that the Chief Justice of India had, for the purpose of rendering his advice in the process of consultation, decided to make enquiry from Shri S.N. Kumar concerning the allegations against him. He had enquired, and Shri Kumar had explained, about the Judge continuing to hear part-heard cases even after he had been moved to the appellate jurisdiction of the court. Had the allegations contained in the letter of May 7, 1881 been communicated to the Chief Justice of India, he would have been in a position to determine for himself by necessary enquiries, either from Shri Kumar or from other sources, whether there was any substance at all in those allegations. Such an enquiry was material to enable the Chief Justice to decide whether there was any substance in the allegations now made against Shri Kumar, and in case on enquiry he was of opinion that the allegations were baseless he would have, while maintaining his recommendation for a further term as additional Judge to be given to Shri Kumar, communicated his views to the Law Minister in respect of this further material. It must be remembered that the Government was deciding against a further term to Shri Kumar solely on the ground of doubtful integrity, and clearly the allegations contained in the letter of May 7, 1981 were strongly influencing that decision. That is apparent from the note drawn up by the Law Minister on May 27, 1981 where he says: “The Chief Justice of India in his, advice proceeds from the premises that taking up part-heard cases after the allocation of work a 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 Chief Justice of Delhi High Court in his letter dated 7-5-81 go farther”, It is an open question whether the Law Minister would have continued to prefer the views held by the Chief Justice of the High Court if the Chief justice of India had been informed of the allegations contained in the letter and on subsequent enquiries had found that there was no substance whatever in them. So long as the possibility remains, the conclusion must be that the process of consultation with the Chief Justice of India was not full and effective and the withholding of important and relevant material from the Chief Justice of India has vitiated the process. In my view, there was a violation of the constitutional requirement mandated by Clause (1) of Article 217. It follows that the question whether Shri S.N. Kumar should be given a further term as additional Judge has to be reconsidered, and a decision taken only after full and effective consultation as envisaged by the constitutional many date.
The power to transfer a High Court Judge under Clause (1) of Article 222:
896. The most strenuous debate before us has been raised over the scope and content of the power to transfer a Judge from one High Court to another under Clause (1) of Article 222. The issues raised are of great importance to the administration of justice and undeniably can produce far-reaching consequences.
897. The matter has already received the attention of this Court in Union of India v. Sankalchand Himatlal Sheth and the majority opinion expressed therein is that the consent of the Judge is not essential to his transfer. It is urged that the view requires reconsideration and that we, as a larger Bench, are competent to do so.
898. It is desirable in the first place to trace the history of the provision. Almost from the inception of the High Courts in India, Judges appointed to one High Court were thereafter appointed to another High Court. The practice continued under the Government of India Act, 1935. The Government of India Act did not contain any provision corresponding to Article 222 of our Constitution, But by Section 2 and Sub-section (1) of Section 6 of the India (Miscellaneous Provision) Act, 1944 statutory recognition was given to the practice by enacting with retrospective effect Clause (c) in the proviso to Sub-section (2) of Section 220, which said:
(c) The office of a Judge shall be vacated by his being appointed by His Majesty to be Judge of the Federal Court or of another High Court.
That was the only provision in the Act which could be said to constitute evidence of the practice of moving a Judge from one High Court to another court. The clause was included as Clause (c) of the proviso to Clause (1) of Article 193 of the Draft Constitution, and there was a suggestion that another clause be added as follows:
(d) Every Judge shall be liable to be transferred to other High Courts. (B. Shiva Rao: The Framing of India’s Constitution, Select Documents Vol. IV, p. 165).
The peremptory nature of the suggested clause may be noted. The Drafting Committee considered the amendment unnecessary and pointed out that there was no bar under Article 193 to a Judge of one High Court being appointed a Judge of another High Court, and drew attention to the existing Clause (c) providing that the office of the Judge would be vacated on the Judge being appointed to any other Court. In regard to another suggestion that a convention should be established whereby a proportion of Judges in every High Court could be recruited from outside the Province, the Drafting Committee observed that there was no bar to such recruitment or to the transfer of a Judge of a High Court to another High Court. It seems, however, that subsequently the Drafting Commit-tee changed its mind and on reconsideration decided to incorporate an express provision for the transfer of High Court Judges. The provision empowered the President to transfer a Judge from one High Court to any other High Court. This provision was amended subsequently by including therein an obligation to consult the Chief Justice of India in the matter. Consequently, Clause (c) of the proviso to Clause (1) of Article 217 was altered so that in place of the word “appointed” the word “transferred” would be read in conjunction with the words “to any other High Court”. The reasons given by Dr. B.R. Ambedkar in the Constituent Assembly for proposing this provision may be mentioned:
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.
The only question, therefore, that remained was whether such transfer should be made so obligatory as not to involve any provision for compensation for loss incurred. We felt that that would be a severe hardship…. The Drafting Committee felt therefore justified in making provisions that where such transfer is made it would be permissible for Parliament to allow a personal allowance to be given to a Judge so transferred.
The statement gave reasons for making the express provision conferring power to transfer and proceeded on the basis that the transfer could be made obligatory on the Judge concerned, and that he should be relieved to some degree against the hardship occasioned thereby provision was made for payment of compensation. Incidentally, the statement also shows that the Drafting Committee was under the impression that the Judges of the High Courts throughout India should be treated as constituting a single cadre like the Indian Civil Service. The statement can be regarded as of historical relevance only. In so far as it records the impression that the Judges of the High Courts form a single cadre it proceeds on an impression which, as I shall presently show, is totally erroneous. But it does mention the reasons which prompted the Drafting Committee to include the provision for transfer and compensation. The clause providing for the payment of compensatory allowance to a transferred Judge during the period he served as a Judge of the other High Court was omitted by the Constitution (Seventh Amendment) Act, 1956 but thereafter was reinstated in appropriate language by the Constitution (Fifteenth Amendment) Act, 1963.
899. The present Article 222 reads:
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.
(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 determine, by Parliament by law and, until so determined such compensatory allowance as the President may by order fix.
I think it is necessary to remove the impression that the Judges of the High Courts constitute a single All-India cadre. The constitutional scheme embodied in Chapter V envisages each High Court as a distinct entity from every other High Court. It is a complete, self-contained and self-sufficient institution, independent of the others and not related to them in any manner. Every High Court draws its own powers and jurisdiction from the provisions of the Constitution, and in no way does it share them with the other High Courts. When a Judge is appointed to a High Court, he is appointed to that High Court only, It is for that reason Clause (c) of the proviso to Clause (1) of Article 217 enacts that the office of a Judge shall be vacated by his being transferred to any other High Court. He is the holder of a distinct office, that of a Judge of the High Court to which he is appointed. It will be noticed that the consultative process envisaged in Clause (1) of Article 217 involved in his appointment requires the President to consult the Chief Justice of the High Court to which his appointment is proposed and the Governor of the State concerned, besides the Chief Justice of India, The Chief Justice of the High Court is consulted because, as has been observed earlier, he is intimately concerned with the appointment of a competent Judge to meet the particular requirements of his Court. The Governor of the State likewise is consulted because he is concerned about the quality of the administration of justice at its highest level in the State. In the case of both functionaries, they are involved with the appointment in order to ensure that the Judge appointed is most suitable in relation to that High Court. The interests and needs of that High Court alone occupy the mind of these two functionaries. A person may be found unsuitable, by reason of association or other links, for being a Judge of the particular High Court, while he may be free from that embarrassment in respect of the other High Courts. It may be observed that the Presidential warrant appointing the Judge specifically mentions that the appointment is as a Judge of the High Court named therein. Moreover, the prescribed Form itself of the oath, which the Judge must make and subscribe before entering upon his office shows clearly that the appointment is confined to that High Court. We have been referred to Hira Singh v. Jai Singh AIR 1937 All 588, where a Full Bench of the Allahabad High Court held that an additional Judge of that court who had already taken oath on such appointment was not obliged to take oath again on his appointment as a permanent Judge. The case is clearly distinguishable, for it was one where the Judge continued to be a Judge of that Court, He had not been transferred to another High Court. Under our Constitution, the Form reads:
1. A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of)… do swear in the name of God solemnly affirm that I will bear a true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or illwill and that I will uphold the Constitution and the laws. (Form No. VIII in the Third Schedule of the Constitution).
There is no All India Service of High Court Judges. Article 215 speaks of a High Court for each State, and Article 216 plainly declares that the High Court shall consist of a Chief Justice and other Judges. The Chief Justice is a Chief Justice of that High Court only and so are the other Judges. The Judges of a High Court owe their responsibilities and discharge their functions in relation to that High Court only. They have no constitutional connection and no legal relationship with the body of Judges of any other High Court. This position, in my view, cannot admit of any doubt.
900. That being the position how then can the transfer of a Judge from one High Court to another High Court be viewed in law? A Judge appointed to a High Court is entitled to continue as a Judge of that High Court until he attains the age of 62 years, unless of course he resigns his office or is removed from it. His transfer to another High Court involves the vacation of his office in that High Court, that is to say, his appointment as a Judge of that High Court stands terminated. This is confirmed by Clause (c) of the proviso to Clause (1) of Article 217. Simultaneously, without anything more the transfer affects his appointment to the other High Court to which he is being sent. An order of transfer under Clause (1) of Article 222 therefore, is a transaction in two parts, the termination of the appointment as a Judge of the original High Court and the simultaneous appointment as a Judge of the other High Court. That view is supported by the circumstance that the power of transfer is vested in the President. It is significant in this connection that the President is also the appointing authority in the case of appointments made under Clause (1) of Article 217 and is also vested with the power of removal in cases falling under Article 218 read with Clause (4) of Article 124. Therefore, it was necessary that the authority who has been otherwise vested with the power to appoint a Judge and to terminate his appointment should also be the authority to transfer him. It may be added that inasmuch as the transfer constitutes an appointment of the Judge to the other High Court, Article 219 comes into play and, therefore, the transferred Judge must, before he enters upon his office in that High Court, make or subscribe an oath or affirmation according to the prescribed Form.
901. It is necessary to observe that the appointment to the other High Court involved in the order of transfer is an appointment attributable to the power under Clause (1) of Article 222, and cannot be regarded as an appointment under Clause (1) of Article 217. Whereas in the after the Constitution requires consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, in the case of an appointment by transfer the Chief Justice of India alone is involved in the consultation. The framers of the Constitution evidently considered it unnecessary to include other functionaries. If they had to be included, they would have consisted of the Governor of the State and the Chief Justice of the High Court to which the Judge was originally appointed as well as the Governor of the State and the Chief Justice of the High Court to which the Judge was being transferred. It was apparently considered that the consultation with the Chief Justice of India would suffice to take into account the relative interests of the two High Courts and the President would take into account the interests of the two States concerned. In this regard, while there is no constitutional requirement expressly mentioned in Clause (1) of Article 222, it is always open to the President and the Chief Justice of India to make necessary enquiries of the two States and the two High Courts affected by the transfer. The merit of involving the Chief Justice of India alone in the consultative process under Clause (1) of Article 222 lies in this hat the process of consultation can be more expeditiously completed and is to be preferred to the inevitably protracted process called for by a constitutional requirement involving two States and two High Courts. Whereas the Chief Justice of India can informally ascertain the views of the Chief Justices of the High Courts and satisfy himself whether he should advise in favour of the transfer, the President can similarly ascertain the views of the two States. The need for a formal presentation before the President of advice from the Chief Justices of the two High Courts, from the Governors of the two States and from the Chief Justice of India is thus eliminated.
902. I shall now examine whether the power to transfer under Clause (1) of Article 222 can be exercised only after securing the consent of the Judge concerned or even without his consent. As I have observed, the power to transfer was not expressly conferred by any provision under the Government of India Act, 1935. What was done was to clarify that when a Judge appointed to one High Court was thereafter appointed to another High Court, he must be deemed to have vacated his office in the original High Court In other words, it was made clear that on his subsequent appointment he could not be regarded as a Judge of two High Courts. That, it seems to me, was the intent of the speeches made by the Earl of Munster in the House of Lords and the Secretary of State for India, Mr. L.S. Amery, and Mr. Pethick Lawrence in the House of Commons when the India (Miscellaneous Provisions) Bill was introduced in the two Houses. Although they spoke of “the transfer” of High Court Judges, it is apparent that the word was used in the popular sense. It was not used in the particular sense of an obligatory transfer. There was no provision then in the Government of India Act for the appointment to another High Court of a sitting Judge without his consent. Indeed, the word used in Clause (c) of the proviso to Sub-section (2) of Section 220 of the Act was “appointed”. That was also the word used in the original Clause (c) of the proviso to Clause (1) of Article 217 of our Draft Constitution. It was only when Article 222 was added that the word “appointed” was substituted by the word ‘transferred’. The difference between the two words ‘appointment’ & ‘transferred’ in our Constitution is borne out by the different terms used in Clause (c) of the proviso to Clause (1) of Article 217, where it is declared that the office of a Judge shall be vacated by his being “appointed” by the President to be a Judge of the Supreme Court or on his being “transferred” by the President to any other High Court. It is true that Sub-clause (iii) of Clause (b) of paragraph 11 of the Second Schedule to the Constitution, which defines “actual service”, speaks of “joining time on transfer from a High Court to the Supreme Court or one High Court to another”. To my mind that plainly is an error in the drafting of the provision. It would seem that some of the provisions in the Schedules have not been framed with the care they deserved, because in another part, Form IV in the Third Schedule, the Form of Oath or Affirmation to be taken by the Chief Justice of India before entering upon his office refers to him as the Chief Justice of the Supreme Court of India. In Clause (1) of Article 124, and throughout the other provisions in the body of the Constitution, he is described as the Chief Justice of India.
903. It seems to me that Clause (1) of Article 222 was specifically enacted in our Constitution for the purpose of empowering the President to transfer a Judge without necessarily securing his consent. The power was intended to be in the widest terms and subject only to the obligation to consult the Chief Justice of India. If transfer was conditioned further by the imperative of securing the consent of the Judge concerned, then having regard to past practice there was in fact no need to enact Article 222. A Judge can always be removed from one High Court to another with his consent. That had not in frequently been done during the ninety years of the High Courts in British India, and there was no reason why it could not have continued in the High Courts under our Constitution. But the framers of the Constitution intended a departure from that position. By Clause (1) of Article 222 in the terms enacted, they did not include the condition that the Judge concerned must consent to his transfer.
904. It was contended before us that Clause (1) of Article 222 was incorporated in the Constitution so that the Chief Justice of India could be brought in for the purpose of ensuring that the transfer was effected in the public interest only and not for the personal benefit of a Judge. The argument is without substance. Public power of this nature can be employed only in the public interest. It may be that incidentally the transfer may advantage the Judge, but in every case the primary ground for transfer must be public interest. It seems to me clear that unless Clause (1) of Article 222 had been enacted, it was not possible for the President to transfer a Judge from one High Court to another without his consent. If a transfer only with the consent was contemplated, it would have been sufficient to rely on the power of the President under Clause (1) of Article 217 to appoint the Judge to another High Court, and Clause (c) of the proviso to Clause (1) of Article 217 would remove any doubt that by such appointment the Judge vacated his office in the original High Court. There is no need to confer power in express terms to do a specific act which can be done with the consent of the parties under the umbrella of a general power.
905. It is worthy of note that where the element of consent was considered necessary, it was expressly mentioned in the Constitution. The proviso to Article 224A imposes that condition when a former Judge of a High Court is requested by the Chief Justice of a High Court to sit and act as a Judge of the High Court. So also is the provision in Article 128 in respect of former Judges of the Supreme Court, the Federal Court or of a High Court requested to sit and act as a Judge of the Supreme Court. In contrast, when under Clause (1) of Article 127 a Judge of a High Court is requested to sit as an ad hoc Judge of the Supreme Court when a quorum of the Judges of the Supreme Court is not available, the Judge of the High Court is bound to accept the request and his consent is not necessary. Reference may also be made to the position in England where under Section 4 of the Supreme Court of Judicature (Consolidation) Act, 1925 the High Court is divided into three divisions, the Chancery Division, the King’s Bench Division and the Probate. Divorce and Admiralty Division. The puisne Judges of the High Court are attached to the several divisions by a direction of the Lord Chancellor. Sub-section (2) of Section 4 of the Act provides that any such Judge may with his consent be transferred by a like direction from one of the Divisions to another. It will be noticed that although the three Divisions are part of the same High Court, nonetheless the statute expressly insists that on a Judge being attached to one of the Divisions he can be transferred to another Division only with his consent. The provision was reiterated in Sub-section (4) of Section 1 of the Supreme Court of Judicature (Amendment) Act, 1944.
906. It is contended that the element of consent must be imported in Clause (1) of Article 222 because a fresh oath or affirmation is necessary when a Judge enters upon his office in the other High Court, and whether he will make and subscribe such oath or affirmation rests necessarily within his volition. To my mind that consideration does not necessarily lead to the conclusion sought to be inferred. If a transferred Judge refuses to make and subscribe such oath or affirmation he could be regarded, it seems as guilty of misbehaviour warranting his removal.
907. But the principal ground in support of the submission that a transfer of a Judge of a High Court can only be with his consent lies in the argument that such a transfer amounts to a punishment of the Judge without trial and therefore the principle of judicial independence is gravely prejudiced. That submission, to my mind, must be tested by an examination of the grounds on which a transfer is permissible. Clause (1) of Article 222 does not mention the grounds on which the Judge may be transferred. Plainly, inasmuch as it is in the nature of a public power vested in a functionary of the State, it can be exercised only in the public interest. Public interest is the touchstone on which every transfer must be tested. That is the necessary limitation implicitly circumscribing the exercise of power under Clause (1) of Article 222. All grounds which can be said to fall within that rubric may be entertained. But no ground which falls within the scope of Article 218 read with Clauses (4) and (5) of Article 124 can be brought within that scope. The grounds envisaged by those provisions are “proved misbehaviour or incapacity”. In relation to them express provision has been made by the Constitution, the grounds being so grave that if established they can result in one penalty only, that of removal of the Judge.
908. The removal of a Judge is a matter of the greatest seriousness. It affects not only the Judge personally but also, in a larger sense, affects the general reputation of the judiciary. Consequently, the Constitution, by Clauses (4) and (5) of Article 124 and by the Judges (Inquiry) Act, 1968 has made the removal subject to a constitutional and statutory process consisting of several stages at each of which the action for removal is screened. The Judges (Inquiry) Act, 1968 requires a notice of motion for presenting an address to the President praying for the removal of a judge. The notice must be signed by a hundred members of the House of the People, where notice is given in that House and by fifty members of the Council of State where the notice is given in the Council. The Speaker or the Chairman, as the case may be, may consult such person as he thinks fit and after considering such material, if any as may be available to him, he may either admit the motion or refuse to admit the same. If the motion is admitted, the Speaker or the Chairman, will then constitute a Committee for the purpose of making an investigation into the grounds on which the removal is sought. The Committee consist of three members, one chosen from among the Chief Justice and other Judges of the Supreme Court, the other being a Chief Justice of a High Court and the third being a distinguished jurist. The Committee is required to frame definite charges against the Judge, and such charges together with the statement of the grounds must be communicated to the Judge, who will be given a reasonable opportunity of presenting a written statement of defence. Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by a Medical Board appointed by the Speaker or, as the case may be, the Chairman. The Medical Board undertakes the medical examination of the Judge and submits a report to the Committee. During the investigation, the Committee is obliged to give reasonable opportunity to the Judge of cross-examining witnesses, adducing evidence and of being heard in his defence. At the conclusion of the investigation, the Committee is required to submit its report to the Speaker or the Chairman, as the case may be. If the report of the Committee finds that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity no further steps can be taken in either House of Parliament and the motion pending in the House cannot be proceeded with. If the report finds that the Judge is guilty, then the motion together with the report of the Committee, is taken up for consideration by the House or the Houses in which it is pending. If the motion is adopted by each House of Parliament in accordance with Clause (4) of Article 124 read with Article 218, then the misbehaviour or incapacity of the Judge is deemed to have been proved and an address praying for the removal of the Judge must be presented to the President by each House of Parliament in the same session in which the motion has been adopted. It is clear that where an allegation of misbehaviour or incapacity is levelled against a Judge, he has the opportunity to defend himself including the right to lead evidence as well as to cross-examine witnesses produced against him. At every stage of the process the statute provides for careful consideration whether the motion for removal should be continued. Allegations which are so grave as to attract such detailed procedure and which afford full opportunity to the Judge to defend himself cannot possibly be made a ground for transfer of the Judge. In my view, the grounds of misbehaviour or incapacity are clearly ruled out from the scope of Clause (1) of Article 222. I am convinced that the transfer of a Judge under that provision cannot be made for the purpose of punishing him. It was never intended that the power should be exercised to impose a penalty by way of punishment. To permit that would be to permit a violation of the principle of judicial independence, for the only grounds envisaged by the Constitution for punishment are grounds constituting misbehaviour and the penalty for which is removal from office.
909. In the transfer of a Judge from one High Court to another the principle of judicial independence and the rights of the Judge are protected by two safeguards. The first is that incorporated in Clause (1) of Article 222, that is to say, the obligations of the President to consult the Chief Justice of India. The Constitution expects the Chief Justice of India to ensure in the process of consultation that the power to transfer is not used arbitrarily against a Judge of a High Court, that it is not employed as a disguise for punishing him, and that, even if the ground for the proposed transfer is made out, it will be in the public interest to affect the transfer. In this regard, the consultation with the Chief Justice of India must, in my opinion, extend to the entire gamut of the grounds on which the transfer is proposed, even where the grounds are incorporated in a policy. The protection afforded to the Judge by the obligation of consultation with the Chief Justice of India is intended to be a complete protection. It must be borne in mind that the Judge concerned is entitled to continue in the High Court to which he has been appointed for the full period of his tenure. It has already been observed that the transfer can be affected without the consent of the Judge. It is, therefore, necessary to construe the scope of the safeguard of consultation in its fullest comprehension. To properly discharge his responsibility in the matter, the Chief Justice of India must consider himself obliged to entertain not only the material furnished by the President to him but he must also make as full an enquiry as he conveniently can for the purpose of determining whether a transfer should be advised. In that process, he must determine not only whether the grounds on which the transfer proposed are made out but he must also consider as relevant the personal circumstances of the Judge concerned. It is ultimately in the public interest that the personal circumstances of the Judge should be taken into consideration, for there may be a case where they may hinder the proper discharge of his duties in the High Court to which he is transferred. In that connection it is only right that the Chief Justice of India should satisfy himself by enquiring from the Judge himself about what he has to say in the matter of his transfer, both in regard to the grounds for the transfer as well as in regard to any hardship or inconvenience which may be suffered by him by such transfer. As a sitting Judge he is entitled to be informed of the proposed transfer and of the grounds therefor because his right to continue as a Judge of the High Court is placed in jeopardy. It is a very different case from the transfer of an officer who is a member of a service and is ordinarily transferable. As has been observed earlier, a Judge of a High Court is not a member of any All India Service of Judges. It may be made clear at this stage that the Judge does not have a right of hearing in the sense in which that right is generally understood in law. The scope and degree of inquiry by the Chief Justice of India must rest in his discretion. All that is necessary is that the Judge should know why his transfer is proposed and he should be able to acquaint the Chief Justice of India of any reason why he should not be transferred. It may also be added that the process of consultation envisaged under Clause (1) of Article 222 requires that all the material in the possession of the President must be placed before the Chief Justice of India, as well as such other information which he may need and may call for in order to render his advice.
910. The advice tendered by the Chief Justice of India should ordinarily be accepted by the President and in this regard the observations made in Union of India v. Sankalchand Himatlal (supra) will be fully attracted. Chandrachud, J. as he then was, speaking for the majority of the Court, relying on what Bhagwati & Krishna Iyer, JJ. said in Shamsher Singh v. State of Punjab observed “that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Executive if it departs from the counsel given by the Chief Justice of India.” In practice, the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order’.”
Krishna Iyer, J. observed (at pp. 2384 and 2385 of AIR):
Although the opinion of the Chief Justice of India may not be binding on the Government it is entitled to great weight and is normally to be accepted by the Government because the power under Article 222 cannot be exercised whimsically or arbitrarily.
and further;
It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India.
He added:
The danger of arbitrary action or unsavoury exercise has been minimised by straight-jacketing of the power of transfer. Likewise, the high legal risk of invalidation of any Presidential order made in the teeth of the Chief Justice’s objection, runs in an added institutional protection. For it is reasonable for the court before which a Judge’s transfer is challenged, to take a skeptic view and treat it as suspect if the Chief Justice’s advice has been ignored.
I am fully in agreement with those observations. It is open to a Judge who is ordered to be transferred to invoke the jurisdiction of the court and seek judicial relief against the transfer on the ground of violation of Clause (1) of Article 222 as construed by this Court. This constitutes the second of the two safeguards mentioned earlier.
911. While on this point, I think it necessary to emphasise that the power to transfer a Judge from one High Court to another under Clause (1) of Article 222 is an extraordinary power. Inasmuch as it can be exercised without the consent of the Judge, it can constitute a threat to the sense of independence and impartiality of the Judge. It must, in my opinion, be used most sparingly and only for very strong reason. It must be clearly understood that the onus of justifying the transfer lies heavily on the State.
911-A. In the debate before us pointed reference was made to a policy contemplated by the Government in regard to the transfer of Judges of the High Court. It seems to me that any policy governing the application of Clause (1) of Article 222 must conform in all respects to the scope and content of Clause (1) of Article 222. The power to transfer is to be found in that clause, and every act of the Government, be it the framing and adoption of a policy or the actual order of transfer, must fall completely within the scope of that provision. The entire content of power vested in the President respecting the transfer of Judges of the High Courts must be traced to the confines of the clause. Accordingly, any policy framed and adopted in this behalf must be tested on the criterion of public interest, and it must be clearly understood that “public interest” means here the interest of the administration of justice. That is the sole purpose of the grant of the power under Clause (1) of Article 222. Now, if the framing and adoption of a policy is an act of the President under the power conferred by Clause (1) of Article 222, it must be subjected to consultation with the Chief Justice of India. That is an imperative condition grafted on the exercise of all power relating to the transfer of Judges of the High Courts. That the framing and adoption of a policy should be governed by that condition is easily explicable if it is appreciated that the policy constitutes the basic consideration entering the order of transfer. All considerations controlling the transfer of a Judge of a High Court must fall within the scope of the consultative process. The Constitution intends that the Chief Justice of India should be consulted before a transfer is ordered by the President. The consultation must travel over the entire area of consideration which prompts the transfer. The scope of consultation is not limited to any particular. It must be remembered that the Constitution has insisted on consultation with the Chief Justice of India in order to protect the administration of justice and its central principle, the independence of the judiciary, from arbitrary encroachment by executive power.
912. It is contended that policy making is the exclusive and absolute preserve of Governmental power. While that may be so ordinarily, it cannot be accepted here having regard to the plain terms of Clause (1) of Article 222. It is also urged that the policy can always be tested in a court of law for its constitutional validity, and therefore the intervention of the Chief Justice of India in his consultative capacity need not be contemplated. It is not possible to agree. The framing of a policy is an administrative exercise, and calls for making a choice of one or more considerations for executive action within the field of several considerations. When the Chief Justice of India is consulted on the formation of a policy by the President, the consultation involves an administrative choice operating on an administrative plane. When the President consults the Chief Justice of India under Clause (1) of Article 222, it is consultation in relation to an executive act.
The transfer of Shri K.B.N. Singh, Chief Justice, High Court of Patna:
913. Shri K.B.N. Singh was a Judge of the High Court of Patna from September 15, 1966. He was appointed Chief Justice of that Court and assumed charge on July 19, 1976. On January 19, 1981 the President issued a notification, after consultation with the Chief Justice of India, transferring Shri K.B.N. Singh as Chief Justice of the High Court of Madras with effect from the day he assumed charge of that office. The transfer has been challenged in Writ Petition No. 274 of 1981 and Transferred Cases Nos. 2, 6 and 24 of 1981. The principal contentions of the petitioners are firstly, that there has been no effective consultation as envisaged by Clause (1) of Article 222 inasmuch as all the material considered by the Chief Justice of India was not placed before the President, and the process of consultation was not marked by fair procedure, and, secondly, that the transfer cannot be said to have been made in the public interest, and if different considerations have prevailed with the President and the Chief Justice of India, neither can be described as related to public interest.
914. An examination of the several affidavits and of the correspondence between the Government and the Chief Justice of India discloses the following facts;
915. The Chief Justice of India decided on visiting the High Court of Patna in February, 1980 in order to meet the Judges of the High Court and members of the Bar. After informing Shri K.B.N. Singh, Chief Justice of the High Court of his proposed visit, he proceeded to Patna and during his stay there on February 24, 25 and 26, 1980 he met the Judges of the High Court individually and interviewed individual members of the Bar, and also met Judges of the District Court and members of the District Court Bar. Of twenty advocates of the High Court whom he met, there were fifteen senior advocates suggested by Shri K.B.N. Singh. He also met the members of the Advocates’ Association collectively at a function arranged by them. Among other things he had also come to know that Shri K.B.N. Singh’s mother was old and infirm and not in a good state of health. At that time he did not indicate to Shri K.B.N. Singh that there was any proposal to transfer him to another High Court because at that time there was no proposal to transfer him. It is clear that he returned from Patna greatly perturbed about the conditions prevailing there, and the matter continued to engage his mind thereafter. It was then that he conceived of the transfer of Shri K.B.N. Singh. There was at that time a proposal by the Government that the Chief Justices of all the High Courts should be transferred as a matter of policy to other High Courts, so that each High Court would be headed by a Chief Justice from outside. No final formulation of the scheme had been reached and no modality or mechanism had been decided on for implementing such a policy. From the correspondence and other material on the record it is apparent that the Chief Justice of India and the Law Minister were engaged in continuous discussion over a long period with regard to the appointment of the Chief Justices of High Courts. The discussion was embodied in their letters and also took place in personal meetings and over the telephone. On December 7, 1980, the Chief Justice of India wrote to the Law Minister “in furtherance to the discussion which we had yesterday”, stating that he was “firmly opposed to a wholesale transfer of the Chief Justices of High Courts”, and that “such transfers may be made in appropriate cases for strictly objective reasons” and “personal considerations must, in the matter of such transfers, be wholly kept out”. He mentioned that the transfer of some of the Chief Justices had been engaging his attention for the past few months and in this connection he had made personal enquiries and had met several lawyers and many Judges of the High Courts concerned. He recommended that Shri K.D. Sharma, then acting as Chief Justice of the High Court of Rajasthan, should be transferred as Chief Justice of the High Court of Kerala, and Shri K.B.N. Singh should be transferred from the High Court of Patna as the Chief Justice of the Rajasthan High Court. It appears that it was then realized that certain difficulties would arise if Shri K.D. Sharma was transferred to the High Court of Kerala. In a letter to the Prime Minister written on December 18, 1980 the Chief Justice of India proposed that the transfer of Shri K.B.N. Singh from Patna to Rajasthan should await further consideration. After a telephone talk with the Law Minister, the Chief Justice of India wrote on December 20, 1980 proposing the transfer of Shri M.M. Ismail, Chief Justice of the High Court of Madras as Chief Justice of the High Court of Kerala and the transfer of Shri K.B.N. Singh as Chief Justice of the High Court of Madras. On January 5, 1981, the Chief Justice of India telephoned Shri K.B.N. Singh and informed him of the likelihood of his transfer to Madras. He asked him if he had anything to say in the matter. Shri K.B.N. Singh wished to know why he was being transferred and the Chief Justice of India informed him that it was “Government policy” and that it was proposed to transfer Shri M.M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place. Shri K.B.N. Singh informed the Chief Justice of India on the telephone that his mother was bedridden and he was not in a position to go with his mother to Madras. No other personal difficulty was disclosed. Shri K.B.N. Singh also observed that if his transfer was insisted on he would prefer to resign. The Chief Justice of India requested him not to act in haste but to give the matter close thought, and he added that he was also making a note of the difficulty mentioned by him and “it will have to be taken into consideration before a final decision was taken.” The Chief Justice of India requested him to come to Delhi to discuss the question of his transfer. On January 8, 1981 at 7-30 p. m. Shri K.B.N. Singh met the Chief Justice at India at his residence in Delhi and was with him for some time. He discussed the question of his mother’s advanced age and illness; that was the only personal difficulty which he mentioned in the matter of his proposed transfer to Madras. The Chief Justice of India told him that he was unable to agree that the mother’s circumstances presented any serious difficulty because there were other dependable persons in his family who could look after the mother and that, in any case, his brother Shri S.B.N. Singh, who was practising in the High Court, was quite capable of looking after the mother. Shri K.B.N. Singh replied that his mother was particularly devoted to him and he could not leave her to the care of his brother and other members of the family. He mentioned that some baseless complaints may have been made to the Chief Justice of India and that he desired to remove any wrong impression created by those complaints. The Chief Justice of India assured him that he was not proceeding on the basis of baseless complaints and that he did not believe that his conduct was blameworthy, but that if he wanted to explain any matter which according to him had created dissatisfaction about the working of the High Court he was welcome to do so. Upon that, Shri K.B.N. Singh told the Chief Justice how certain persons connected with the High Court were influenced by communal considerations and how he, on his own part, did not permit communal or other extraneous considerations to influence him administratively or judicially. The Chief Justice of India assured him that he did not hold him to blame, but that certain persons were exploiting their proximity to him and that had created unnecessary misunderstanding and dissatisfaction. The Chief Justice of India conveyed to Shri K.B.N. Singh that his transfer was pro-posed in the public interest and that it was not made by way of punishment, and that it was thought of also by the transfer of Shri Ismail from Madras to Kerala.
916. It seems clear that Shri K.B.N. Singh was informed by the Chief Justice of India in full detail of the proposal to transfer him from the High Court of Patna to the High Court of Madras, and keeping in mind the telephone conversation between them on January 5, 1981 and the personal discussion on January 8, 1981 it is apparent that Shri K.B.N. Singh was being transferred not because of any wrong or fault on his part or for any conduct for which blame could be attached to him, but because people were exploiting their proximity to him in matters which had created dissatisfaction and unnecessary misunderstanding in the High Court at Patna. It is also apparent that Shri K.B.N. Singh was aware that such a situation prevailed because he attempted to clear himself of any blame in connection with what was happening. He was invited by the Chief Justice of India to say whatever he wanted to in the matter which “according to him had created dissatisfaction about the working of the High Court”. It is clear that the matter was discussed fully between the Chief Justice of India and Shri K.B.N. Singh and the latter had ample opportunity to say what he wanted to. And it is also clear that the proposal to transfer him from Patna was not by way of punishment. It is unfortunate that a situation had been allowed to develop in legal and judicial circles at Patna which could only be remedied by his transfer. That the transfer was intended to Madras was occasioned by the circumstance that Shri M.M. Ismail was being transferred from Madras to Kerala and it was necessary to send a senior and experienced Chief Justice to the High Court of Madras. The difficulty expressed by Shri K.B.N. Singh in regard to the condition of his mother’s health was also considered by the Chief Justice of India, who felt that Shri S.B.N. Singh, his brother practicing law in the High Court, and other dependable persons in the family at Patna could be relied on to look after the mother. Every relevant circumstance, including the personal difficulty mentioned by Shri K.B.N. Singh was considered carefully and objectively by the Chief Justice of India and on an assessment of the relevant facts and circumstances he came to the conclusion that notwithstanding any difficulty posed by a different language in Madras, as Shri K.B.N. Singh was an experienced and senior High Court Chief Justice, he should be transferred from Patna to Madras. I am satisfied that a fair procedure was adopted and all that could reasonably be done in the circumstances was done in the matter.
917. It is urged there was no full and effective consultation between the chief Justice of India and the Government as the second discussion between the Chief Justice of India and Shri K.B.N Singh took place in the evening of January 8, 1981 and the order was signed by the Prime Minister the next day. The Chief Justice of India, in his affidavit on oath has emphatically averted that “there was full and effective consultation between me and the President of India on the question of Shri K.B.N. Singh’s transfer from Patna to Madras as the Chief Justice of Madras High Court. Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer”. There is no material on the record for doubting the statement. It must be remembered that the matter of Shri K.B.N. Singh’s transfer had been under discussion all along for a considerable time between the Chief Justice of India on the one side and the Law Minister and the Prime Minister on the other, arid the discussion had taken place through written correspondence as well as oral conversation by way of discussion in personal meetings and on the telephone. It is perfectly within the realm of credibility that what had passed between the Chief Justice of India and Shri K.B.N. Singh on January 8, 1981 had also been communicated to the Law Minister and the Prime Minister before the order of transfer was signed by the Prime Minister.
918. A point was raised that the Chief Justice of India had averred in his affidavit that the consultation was effected between him and the President of India and not that the consultation took place between him and the Law Minister and the Prime Minister. To my mind, it is clear that Chief Justice of India is referring to the President in the sense of the “Executive Government”. This is amply borne out by the large volume of documentary material which shows that the Chief Justice of India was in communication with the Law Minister and the Prime Minister only. There is nothing to suggest that he met the President personally in this matter.
919. It is also contended that the proposal to transfer Shri K.B.N. Singh had already been made by the Chief Justice of India to the Government as early as December 1980 and this was before any discussion on the point between him and Shri K.B.N. Singh. Now it is clear from the record that the proposal so made was in the nature of a suggestion calling for an examination of the matter. The Chief Justice of India had visited Patna and from the material in his possession he had formed an opinion that there was a case for considering the transfer of Shri K.B.N. Singh. The matter was only at the stage of consideration and clearly could not be finalised before Shri K.B.N. Singh had been taken into confidence. We must remember that it was the Chief Justice of India (Chandrachud J. as he then was) who had pronounced judgment in Union of India v. Sankalchand Himatlal Sheth , where in considerable detail he has dwelt on the imperative need of a full and effective consultation which, as he observed there, could require the Chief Justice of India to elicit the facts directly from the Judge concerned. It was apparently pursuant to this that he considered it necessary to discuss the matter with Shri K.B.N. Singh otherwise, he would not have found it desirable to telephone from Delhi to Patna on January 5, 1881 and after discussing the matter with him then, to invite him for further discussion at Delhi on January 8, 1981. The proposal was pending, the consultation with the Government was going on and no final decision had been taken. As the Chief Justice of India has stated in his affidavit, the discussion with the Government continued even after the proposal. The process of consultation could continue right up to the moment the final decision was taken. The process of consultation continued actively throughout and there is no reason to doubt the objectivity which marked it. As the learned Solicitor General has pointed out, it must not be forgotten that the Chief Justice was not a personally interested party but was only discharging the duties and responsibilities cast on him by the Constitution. A few facts may be set forth again. On December 18, 1980, the Chief Justice of India requested the Prime Minister that the proposal to transfer Shri K.B.N. Singh to Rajasthan should await further consideration. On January 5, 1981, Shri K.B.N. Singh was informed by the Chief Justice of India that the difficulty mentioned by him concerning the infirmity and age of his mother was being noted by him and would be taken into consideration before a final decision was taken. It seems to me beyond dispute that the matter did not stand closed merely because of the proposal made in December 1980 to transfer him.
920. Then it is urged that Clause (1) of Article 222 contemplates that the process of consultation should be initiated by the President by a reference of the matter to the Chief Justice of India for his advice and that instead “it is the latter who has initiated the process I do not see any substance in this point having regard to the continuous consultation which was going on between the Chief Justice of India and the Government.
920-A. I shall now deal with the task of identifying the considerations which prevailed with the Chief Justice of India and the Government in transferring Shri K.B.N. Singh, and whether it can be said that those considerations fall within the expression “public interest.”
921. When a Judge permits his judgment in a case to be influenced by the irrelevant considerations of caste and creed, of relationship or friendship, of hostility or enmity, he commits a breach of his oath. It is a case where justice is not done and is denied. It is a case of misbehaviour, to which the provisions of Article 218 read with Clauses (4) and (5) of Article 124 are attracted. There is another kind of case where a Judge acts in accordance with his conscience on the basis of the facts and the law as he bona fide understands them, and yet because of surrounding circumstances it may appear that justice, has not been done even though in fact it may have been done. Where there is a danger that justice will not appear to be done, and the prevailing environment is linked with the person of the Judge, notwithstanding that he may have done nothing to promote it, the injury to the administration of justice can be as serious as a case where the Judge has consciously deviated from the standards of impartial judgment. Where there is a genuine apprehension that justice may not appear to be done, the ordinary rule is that the case pending before the Judge should be transferred to another Judge. But where the apprehension is rooted in local association, on links with members of the Bar or influences present in close proximity to the Judge and the circumstances are such that, notwithstanding that the conduct of the Judge has done nothing to promote it, there is grave and bona fide fear in the minds of honest citizens that the fount of justice may be polluted, its effect is not confined to a single case but spreads widely, endangering the purity of the entire administration of justice. Inasmuch as the administration of justice relies for its vitality on the strength of public confidence, it must range supreme and, therefore, if the Judge is transferred in these circumstances it must be regarded as a transfer in the public interest. The desirability of inducting Chief Justices and a proportion of the Judges from outside the State has been emphasised ever since the drafting of the Constitution. During the finalisation of the Draft Constitution a suggestion was received by the Drafting Committee that one-third of the Judges appointed to a High Court should be from outside the State. Successively, the idea has been promoted by the Law Commission of India in its Fourteenth Report and thereafter in its Eightieth Report, and also by the States Reorganisation Commission. The need has been affirmed from time to time and programmes to implement it have been constantly mooted. The Union Government, according to the evidence before us, has been actively engaged during the last two years in securing an acceptance of the policy from the judiciary and discussions have taken place from time to time between, the Chief Justice of India and the Law Minister. The Government has proposed that the policy should be implemented not only by appointing the Chief Justice and one-third of the number of Judges to a High Court from outside the State at the time of their initial appointment to the office, but should also be taken in hand presently by the transfer of sitting Chief Justices and Judges. It has been further proposed by Government that the transfers should be effected simultaneously in all the High Courts.
922. It seems from the material on the record that although the Chief Justice of India is in agreement with the need for appointment of Chief Justices and a number of Judges to the High Court from outside the State, he has not accepted yet the further suggestion of the Government that the transfer should be effected as a policy implemented en masse over all the High Courts. It seems that the Chief Justice of India is prepared to go so far only that the matter should be considered from case to case, on the objective merits of each case. This is evidently what he had in mind when he considered it desirable to propose the transfer of Shri K.B.N. Singh as Chief Justice from the High Court of Patna to the High Court of Madras. He did so plainly on the ground that although Shri K.B.N. Singh himself was not to blame for this, people in the proximity of Shri K.B.N. Singh had created an atmosphere injurious to the administration of justice resulting in great disaffection. It is apparent that the reasons which weighed with the Chief Justice of India form the very basis of the policy promoted by the Government. The basic component of that policy is identifiable in the reasons which prevailed with the Chief Justice of India. When this view is taken, it is immediately clear what the Chief Justice of India meant when during the telephone conversation with Shri K.B.N. Singh on January 5, 1981, he explained that the transfer was prompted by Government policy. This also readily explains why the Government accepted the proposal to transfer Shri K.B.N. Singh. As the learned Solicitor General explained before us, the Government considered this as the first stage in the implementation of its policy, and although there was no finalisation in regard to the time and manner of inducting the Chief Justice and a proportion of the Judges in a High Court from outside the State, the proposal to transfer Shri K.B.N. Singh was rooted in the very considerations which found favour with the Government in promoting the policy conceived by it.
923. I am of opinion that the considerations which prevailed with the Chief Justice of India and the Government in the transfer of Shri K.B.N. Singh were substantially identical, that for the purposes of this transfer the Government had agreed that having regard to the reasons for the transfer it was prepared to consider the case on its individual merits and not to insist on the making of transfers generally for the time being. I am also of opinion that the considerations on which the transfer was made must, in view of what I have observed, be regarded as falling within the expression “public interest”. In my judgment, there is no violation of Clause (1) of Article 222.
923-A. It is next urged that the provisions of the Memorandum issued by the Ministry of Home Affairs in the Government of India had not been complied with inasmuch as no enquiry had been made of the Chief Ministers of the States concerned before the transfer of Shri K.B.N. Singh. The learned Solicitor General has stated from the Government records in his possession that the Law Minister consulted the Chief Minister of Tamil Nadu on January 3, 1881, the Chief Minister of Kerala on January 4, 1981 and the Chief Minister of Patna on January 6, 1981 in regard to the proposed transfers of Shri M.M. Ismail and Shri K.B.N. Singh. Learned Counsel for Shri K.B.N. Singh points out that there was opposition by the Tamil Nadu Government to the induction of Shri K.B.N. Singh as Chief Justice of the High Court of Madras on the ground that he was not acquainted with the Tamil language and would find difficulty in coping with his duties in the High Court at Madras. It is said that if the Chief Justice of India had been informed of this objection, Shri K.B.N. Singh would not have been transferred. I have observed earlier that the Chief Justice of India had considered this matter long before, and did not consider it as a substantial difficulty.
Validity of the Circular Letter dated March 18, 1981 issued by the Minister for Law, Justice and Company Affairs, Government of India:
924. The Circular letter was addressed by the Minister to the Chief Ministers of different States and to the Governor of Punjab pointing out that several bodies and forums, including the States Reorganisation Commission, the Law Commission and various Bar Associations had suggested that one-third of the Judges of a High Court should, as far as possible, be from outside the State in which the High Court was situated. It was said that the suggestion was made “to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations”. He requested that the additional Judges working in the High Court of the State should be required to give their consent to be appointed as permanent Judges in another High Court in the country, and they could name three High Courts, in order of preference, where they would prefer such appointment. It was also requested that consent may similarly be taken from persons who have already been, or may in the future be, proposed for initial appointment. He requested further that it may also be made clear to the additional Judges that giving their consent and indicating their preference would not commit the Government in the matter of their appointment or in the matter of accommodating them according to their preference. Thereafter, it appears, some of the additional Judges, whose terms were expiring, were granted further appointment as Additional Judges for short periods of three months, six months or a year.
924-A. The validity of the Circular Letter has been challenged before us on several grounds including the ground that the contents of the letter constitute a threat to the judicial independence of the additional Judges inasmuch as, feeling pressured by the apprehension that unless they conveyed their consent to appointment to another High Court they would not be given further terms as additional Judges, some of them have conveyed their consent. It has been urged that the additional Judges have a right to be considered for appointment as permanent Judges in the High Courts where they are serving, and the Circular letter should be construed as an attempt to transfer them to some other High Court without operating through the consultative process which the President is obliged under the Constitution to enter into with the Chief Justice of India.
925. It seems to me unnecessary to enter into all these points of controversy, because to my mind if the Circular letter is regarded as intending to bind the additional Judges it can have no such effect in law, an appointment of a person as a Judge of a High Court must, as observed earlier, be an appointment to a particular High Court. For the purpose of making such appointment, the constitutional process must be initiated with respect to a particular High Court. The Constitution does not contemplate a single process in relation to several High Courts, collecting as many persons as there are vacancies all over India, and then in the discretion of the Government appointing each of them where the Government pleases. To adopt this procedure will be to equate the appointment of Judges with the appointment of members of an All India Service, a position which cannot constitutionally be countenanced. There must be a separate and distinct process in regard to appointment to each High Court. The Governor of the particular State and the Chief Justice of the particular High Court have to be involved in that process, besides the Chief Justice of India. It is in the course of such a process that a proposal for appointment is made to the person intended for appointment. In other words, a valid proposal, as part of the constitutional process, is one which offers an appointment to a particular High Court. It is only when consent is given to such a proposal, that is to say, consent to appointment in a particular High Court, that it can be said in law to be binding and effective. The Circular letter has invited the consent of the additional Judges in the most general terms, to appointment to any High Court other than the High Court in which they are serving as additional judges. If it is intended to bind the additional Judges, it has failed in its purpose. Neither the proposal nor any consent given thereto has any legal status. It may be that the Circular letter was intended only for the purpose of obtaining information informally whether the additional Judges would be agreeable to being appointed as permanent Judges of other High Courts. But inasmuch as the consent given by the additional Judges cannot bind them, it will be open to them to consider any concrete proposal now made offering appointment to a particular High Court with a perfectly open and free mind, unhindered by any consent given earlier in pursuance of the Circular letter. It may be added that a concrete proposal can contemplate appointment only in accordance with the procedure prescribed in Clause (1) of Article 217.
926. In this view of the matter, it would be sufficient to declare that the Circular letter cannot be acted on and any consent given pursuant to the Circular letter is not binding in law on those who have given it.
The claim of privilege against the disclosure of certain documents:
927. The law relating to the plea of privilege raised by the State against the disclosure of documents has advanced considerably in recent times and its evolution has been traced by brother Bhagwati who has discussed the present content of the law abroad, and has given substantial reason for taking the law forward in this country from the position enunciated by this Court in State of Punjab v. Sodhi Sukhdev Singh . I am in broad agreement with what he has said in regard to what the present state of the law in India should be.
928. But I think it desirable to add a note of warning. There is good reason to be circumspect. Traditions and beliefs which governed life until yesterday and held an important place in the polity cannot be rooted out overnight. Change to be valid must find general acceptance, and its pace will be determined by the education of experience. The past is ever with us, and when the present takes hold it must do so conscious of its responsibility to the future. The rules now developed by this Court relating to the disclosure of documents need to be carefully applied. The balance between the conflicting claims of public interest represented by officialdom and the public interest flowing from the administration of justice often calls for a delicate assessment, into which perforce must enter considerations vital to the operations of Government on the one hand and the demands of adjudication on the other. The responsibility fixed on the Court is a serious one, and there is need to warn that this power which now vests in the Court can have grave consequences if the content of its potential is not truly appreciated and realised by those who wield it. Whenever a court breaks new ground, the development and recognition of new rights is often accompanied by the birth of problems surfacing also for the first time. New doctrines must be cautiously applied, and yet no court can shirk its duty if it finds that its power has been rightly invoked.
929. In regard to the plea raised by the State on the basis of Clause (2) of Article 74 of the Constitution, there is no denying, in my view, the accuracy of what has been observed by brother Bhagwati, that it is the advice and its reasons tendered by the Council of Ministers to the President which are protected from enquiry by a court, and no such protection extends to the material from which the advice proceeds.
930. On the facts of the case, it was material, to my mind, to ascertain whether indeed a full and effective consultation had taken place with the Chief Justice of India on the question whether Shri S.N. Kumar should be appointed for a further term as additional Judge, and for that purpose it became necessary to consider the contents of the letter dated May 7, 1981 addressed by the Chief Justice of the High Court to the Law Minister. Great emphasis was laid by the parties in their submissions on the question of full and effective consultation in point of fact, and it seemed in the context in which the question was debated that the disclosure of the letter of May 7, 1981 and the connected correspondence was imperative in order that justice be administered. It was not an easy decision for the Court to order disclosure, but after carefully balancing the rival interests we came to the conclusion that the balance inclined in favour of a positive order.
Locus Standi:
931. What remains now is to consider the objection raised by the respondents to the maintainability of the petitions before us. My brother Bhagwati has dealt with this objection at some length, and has held that it has no substance. I find myself in general agreement with him, and need say nothing more.
932. Before concluding, I think it only right to record my appreciation and gratitude for the great and valuable assistance offered to the Court by the very able and erudite submissions made during the hearing of these cases. Eminent counsel appeared on both sides, who in the discharge of their responsibilities to the Court and to the parties represented by them, did not spare themselves and brought to bear to the hearing their vast learning and enormous industry, notwithstanding that the hearing had to proceed for several weeks.
933. In the result, Transferred Cases Nos. 19, 20, 21 and 22 of 1981 are allowed in so far that a declaration is granted that the Circular letter dated March 18, 1981 cannot be acted on and that the additional Judges concerned shall not be held bound by their consent, given in pursuance of the Circular letter, to their appointment as permanent Judges of High Courts other than those where they presently serve. In the Transferred Case No. 20 of 1981, the respondents are directed to reconsider the case of Shri S.N. Kumar for appointment as an additional Judge of the High Court of Delhi for a further term. Writ Petition No. 274 of 1981 and Transferred Cases Nos. 2, 6 and 24 of 1981 are dismissed.
934. In all these cases, having regard to the circumstances, there is no order as to costs.
E.S. Venkataramiah, J.
935. The judgment can be conveniently divided into fourteen parts thus:
I. Introduction II. Locus standi of the petitioners III. The doctrine of political question IV. The status of High Courts.
V. Article 217(1) — Appointment of a Judge of a High Court — History –Process of consultation under Article 217(1) — Is the opinion of the Chief Justice of India binding on the President? — Whether the Council of Ministers can tender advice to the president on the question of appointment of a Judge? — Whether such advice interferes with the basic structure of the Constitution? — What is the practice prevailing in some other countries?
VI. Article 224(1) — Appointment of Additional Judges — History — The manner in which Article 224(1) is applied from its commencement and its effect on the principle of independence of judiciary — Has an additional Judge whose term prescribed under Article 224(1) has expired one right? — Does the manner in which Article 224(1) is being used give rise to any enforceable constitutional convention? — Are the principles of natural justice to be followed at the time of consideration of the question of re-appointment of an Additional Judge?
VII. Article 222 — Transfer of High Court Judges — History — Does a transfer of a Judge of a High Court amount to a fresh appointment in another High Court? Does the majority judgment of this Court in Sankalchand Sheth’s case holding that the consent of a Judge is not an essential condition of a valid transfer require reconsideration? — Does an order of transfer amount to a punishment? — Can a Judge be transferred on the basis of allegations of misbehaviour or of incapacity? — Does the expression ‘Judge’ in Article 222 include a Chief Justice also? Is the policy of having the Chief Justice of every High Court from outside the State valid? — Whether ignorance on the part of a Judge of the regional language of the State in which a High Court is situated is an impediment to transfer the Judge to that High Court?
VIII. Question of executive privilege in respect of documents relating to appointment of High Court Judges.
IX. Whether there has been any error in the consultation preceding the decision not to appoint Shri S.N. Kumar?
X. The validity of the circular letter dated March 18. 1981 written by the Law Minister to the Chief Ministers.
XI. Validity of the transfer of Shri K.B.N. Singh.
XII. Cannot the Union Government be called upon to review the strength of Judges in every High Court and to appoint sufficient number of Judges?
XIII. Relief.
XIV. Concluding remarks.
PART I
936. At the commencement, of the judgment it is my duty to thank the learned Counsel who have argued in these cases with exceptional ability and skill, without whose assistance it would have been very difficult to prepare this Judgment. I sincerely thank all of them.
937. These Petitions are disposed of by this common judgment because common questions of law arise for consideration in them. A brief statement of facts involved in these cases is given below.
938. Transferred Case No. 22 of 1981 had originally been filed in the High Court of Bombay under Article 226 of the Constitution. Later on it was transferred to the file of this Court by an order made under Article 139A of the Constitution to be disposed of along with other connected cases. The petitioners in this case are Shriyuts Iqbal M. Chagla, C.R. Dalvi, M.A. Rane and Sorab K.J. Mody. They are advocates practising in the High Court of Bombay. Respondents Nos. 1 and 2 in this case are the Union Law Minister and the Union of India. Respondents Nos. 3 to 12 are the additional Judges of the High Court of Bombay appointed under Article 224(1) of the Constitution. The above petition is filed questioning the validity of a circular letter dated March 18. 1981 addressed by the Union Law Minister to the Governor of Punjab and Chief Ministers (by name) (except the North-Eastern States) by which they were requested to obtain the consent of additional Judges working in the High Courts to their appointment as Judges of the High Courts other than those in which they were additional Judges on the lines indicated in the said circular letter. A request was also made in that letter to obtain consent to appointment as judges from persons who had been or may in future ‘be proposed by you’ (that is by the Chief Ministers). It is alleged that aggrieved by the said letter, which according to them, amounted to a direct attack on the independence of the judiciary, which was a basic feature of the Constitution, the members of the Advocates’ Association of Western India met at a Special General Meeting on April 3, 1981 and passed resolutions inter alia condemning the said letter as subversive of judicial independence and asking the Union Government to withdraw the said letter. The Bombay Bar Association also passed similar resolutions at its Extraordinary General Meeting on April 7, 1981. On April 14. 1981 it is alleged that the Managing Committee of the Bombay Incorporated Law Society (representing the Solicitors practising in Bombay who were also advocates) passed similar resolutions and also authorised the petitioner No. 4 to join as a petitioner in this petition. The petitioners have inter alia alleged that the impugned letter which affected about one hundred additional Judges currently working in the various High Courts and which threatened them with ‘transfer’ to High Courts other than the one in which they were working was outside the scope of Article 222 of the Constitution which provided for such transfers and amounted to an unwarranted executive interference with the judiciary. They have also alleged that the manner of appointment of additional Judges under Article 224(1) of the Constitution was a clear abuse of that provision which empowered the President to appoint additional Judges to clear off arrears in High Courts but not where the arrears were continuously rising. The petitioners have prayed for, among other reliefs, a declaration that the impugned letter of the Union Law Minister was ultra vires and void and that the Union Government should be directed not to act on the consent given by any of the Additional judges. By a counter-affidavit filed by Shri K.C. Kankan, Deputy Secretary, Department of Justice. Ministry of Law, Justice and Company Affairs, New Delhi, the Union Government has opposed the petition. The Union Government inter alia has questioned the locus standi of the petitioners to file the petition and has further pleaded that by the impugned letter, the Union Government merely sought the consent of the additional Judges and others who had been or who were to be proposed for appointment as Judges to the effect that they were willing to be initially appointed as Judges in other High Courts. It is stated that the consent of the additional Judges had not been sought for their transfer under Article 222 of the Constitution. It is denied that there was any attempt to interfere with the independence of the judiciary. The policy of appointment of Judges in High Courts from outside is justified on various grounds set out in the affidavit. Accordingly the Union Government has prayed that the petition may be dismissed.
939. Transferred Case No. 20 of 1981 was originally filed in the High Court of Delhi under Article 226 of the Constitution by Shri V.M. Tarkunde, Senior Advocate of the Supreme Court Bar after the Law Minister’s letter of March 18, 1981 was written and three additional Judges of the Delhi High Court Sarv. Shri 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 March 7, 1979 were appointed as Additional Judges for a period of three months only from March 7, 1981. In addition to the declaration that the impugned letter of the Law Minister was unconstitutional and void. Shri V.M. Tarkunde has requested the Court, among other prayers, to issue a writ in the nature of mandamus to the Union Government (i) to convert the posts of additional Judges into permanent posts in various High Courts commensurate with the regular business of the High Courts and arrears in consultation with the Chief Justice of the concerned High Court and the Chief Justice of India and (ii) to convert 12 posts of additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the arrears of that Court. In the course of the petition the propriety and constitutionality of appointing the three additional Judges referred to above for a period of three months only from March 7, 1981 have been questioned. The other allegations in the petition more or less are similar to the allegations made in the petition of Bombay lawyers. It is not necessary to go into certain events and proceedings that took place till the counter-affidavit was filed in this case on July 22, 1981 except the fact that Shri O.N. Vohra and Shri S.N. Kumar had ceased to be Judges with effect from June 7, 1981 as they had not been appointed as additional Judges for any further period and that Shri S.B. Wad had been appointed as an additional Judge from June 7, 1981 for one year more. In the counter-affidavit filed by shri K.C. Kankan, Deputy Secretary to the Government of India, the petition is opposed. This counter affidavit contains more or less similar pleas contained in the counter-affidavit filed in the petition filed by the Bombay lawyers and in addition to them certain further pleas are raised here in justification of the action taken by the Union Government in not appointing Shri O.N. Vohra and Shri S.N. Kumar as additional Judges for a further period and in appointing only Shri S.B. Wad at stated above. The specific plea with regard to the non-appointment of Shri O.N. Vohra and Shri S.N. Kumar and the appointment of Shri S.B. Wad runs thus:
(w) & (x) Shri Justice Vohra, Shri Justice Kumar and Shri Justice Wad were appointed for a further period of 3 months from 7-3-1981. The short-term appointment was made to enable the Government to take a final view having regard to the complaints that had been received against some of them after consultation with the constitutional authorities. The petitioner’s statement that both the Chief Justice of the Delhi High Court and the Chief Justice of India had recommended the appointment of these 3 Judges for a further period of 2 years is untrue and incorrect. It is strange as to how the petitioner could claim know-ledge of the recommendations of the Chief Justice of India and Chief Justice of Delhi High Court. After careful consideration of the material available with it and after taking into account the views expressed by the Chief Justice of India and Chief Justice of Delhi High Court and after giving full consideration to the views of both Government decided not to give appointments for a further term to Shri Justice O.N. Vohra and Shri Justice S.N. Kumar on the expiry of their term on 6-6-1981. Shri Justice Wad was however, appointed for a further period of 1 year from 7-6-1981.
It is neither necessary nor advisable to disclose to the additional Judges the reasons for their short-term appointments or for their non-appointment since this would bring them within the pale of public controversy and would involve disclosure of material which necessarily has to be kept confidential. There is no breach of the principles of natural justice in this.
940. It may be mentioned here that Shri O.N. Vohra has remained absent in these proceedings but Shri S.N. Kumar has filed a separate affidavit and has presented his case through a counsel. In the course of his affidavit in addition to the pleas supporting the pleas urged by Shri V.M. Tarkunde, he has questioned the validity of the proceedings culminating in not appointing him as an additional Judge after June 7, 1981. The allegations made by Shri S.N. Kumar are controverted by an additional affidavit filed on behalf of the Union Government in this case.
941. Transferred Case No. 21 of 1981 was filed in the High Court of Delhi by Shri J.L. Kalra and others, all advocates, under Article 226 of the Constitution. The petitioners have prayed for the issue of a writ in the nature of mandamus to the Union Government to make an assessment of the number of permanent and additional Judges required for the High Court of Delhi 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 those posts. The other reliefs asked in this petition are substantially the same as the reliefs prayed in Transferred Case No. 20 of 1981 filed by Shri V.M. Tarkunde. The allegations in the petition and in the counter affidavit in these two cases are also substantially the same. This petition, however, emphasises the fact that Article 224(1) of the Constitution is being used for a purpose other than the one for which it is intended. The issues arising out of this petition are the same as those arising in Transferred Case No. 20 of 1981.
942. Transferred Case No. 19 of 1981 was filed under Article 226 of the Constitution before the High Court of Allahabad by Shri S.P. Gupta. Advocate, practising at Allahabad. Aggrieved by the circular letter dated March 18, 1911 which is impugned in Transferred Case No. 22 of 1981 filed by the Bombay lawyers, the non-determination of the necessary strength of permanent and additional Judges of the High Court of Allahabad as required by Articles 216 and 224(1) of the Constitution, the appointment of some additional Judges of the High Court of Allahabad for short terms of six months on the expiry of the period specified in their warrants of appointment under Article 224(1), the alleged misuse of Article 224(1) of the Constitution by the Union Government in making appointments of additional Judges where permanent Judge had to be appointed and several other matters urged in the petition, the petitioner filed the above petition requesting the Court to issue appropriate directions having regard to the submissions made in the petition and principally he has prayed for a declaration that the three additional Judges — Mr. Justice Murlidhar, Mr. Justice A.N. Verma and Mr. Justice N.N. Mithal must be deemed to have been appointed as permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister is void. The reliefs prayed for by the petitioner more or less are identical with the reliefs in Transferred Case No. 22 of 1981. The allegations made in the petition and in the counter-affidavit will be dealt with in the course of the judgment as many of them are common to all these cases.
943. Writ Petition No. 274 of 1981 is filed by Miss Lily Thomas, an advocate practising in the Supreme Court of India under Article 32 of the Constitution. She has sought for a declaration that the transfer of Mr. Justice M.M. Ismail, Chief Justice of the High Court of Madras as the Chief Justice of the Kerala High Court is unconstitutional. She has also stated that the Union Government had acted illegally in not appointing Mr. Justice Subramanian Poti, the senior-most Judge of the Kerala High Court as the Chief Justice of that Court in the vacancy created by the appointment of Mr. Justice Balakrishna Eradi, Chief Justice of the Kerala High Court, as a Judge of this Court. She has contended inter alia that Article 222 of the Constitution which provides for transfer of Judges does not apply to Chief Justices and that in any event Article 222 of the Constitution cannot be used to defeat the claim of the senior most Judge of a High Court to become the Chief Justice of that Court whenever a vacancy occurs in the office of the Chief Justice. She has pleaded that the transfer of Mr. Justice M.M. Ismail had not been made in the public interest and when such transfer is made without consent of the Judge concerned would be unconstitutional. On behalf of the Union of India it is pleaded that the transfer had been made in consultation with the Chief Justice of India in the public interest after taking into consideration all relevant matters. It is pleaded that Article 222 applies to Chief Justices also.
944. Mr. Justice M.M. Ismail who has been impleaded as the respondent No. 2 in this petition has filed an affidavit, the third paragraph of which reads thus:
3. As soon as I was informed of the Notification of the president of India under Article 222(1) of the Constitution of India, transferring me as the Chief Justice of the High Court of Kerala, I decided (1) not to proceed to Kerala to take charge as the Chief Justice of the High Court of Kerala, (2) not to challenge the legality or the validity of the order of the President so transferring me in any Court of Law and (3) to proceed on leave preparatory to premature retirement by resigning my office. In view of this I have nothing to submit to this Hon’ble Court in this Writ Petition and I do not want anyone to litigate far or against me. In these circumstances, I have nothing to represent with reference to the questions of law raised in the Petition and I do not want anything about me to be argued or debated.
945. Mr. Justice M.M. Ismail has since resigned from his office.
946. Transferred Case No. 2 of 1981 was originally filed under Article 226 of the Constitution in the High Court of Madras by Shri A. Rajappa, an advocate practising in Madras. He has prayed for a declaration that the orders of transfer passed by the President on January 19, 1981 transferring Mr. Justice M.M. Ismail, Chief Justice of the Madras High Court as the Chief Justice of the Kerala High Court and the transfer of Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court as the Chief Justice of Madras High Court are void. The principal grounds urged in the petition are that the transfers in question interfere with the independence of the judiciary, a transfer without consent of a Judge is ultra vires under Article 222 of the Constitution and non-consultation with the Governor concerned amounts to violation of Article 217(1) of the Constitution which should precede the appointment of a Chief Justice. The transfer of a Judge who does not know Tamil language to the High Court of Madras would not be in the public interest There is also a plea that the transfers suffer from mala fides. Some of the pleas urged by Miss Lily Thomas m her petition are urged in this petition also. The Union of India has opposed the petition. It has relied on Article 222 of the Constitution in support of the impugned orders of transfer. It is stated that the transfers had been ordered in the public interest in consultation with the Chief Justice of India who is the only authority to be consulted under Article 222 and that the procedure prescribed under Article 217(1) of the Constitution need not be followed when a transfer is ordered under Article 222. The plea that the transfers have interfered with the independence of the judiciary is also denied. The allegation that the impugned orders had been made mala fide is also denied in the counter affidavit filed on behalf of the Union of India.
947. Transferred Case No. 6 of 1981 was originally filed under Article 226 of the Constitution before the High Court of Madras by Shri P. Subramanian. The allegations and prayers made in this petition and the counter-affidavit filed by the Union of India are substantially the same as those in Transferred Case No. 2 of 1981 filed by Shri A. Rajappa.
948. Transferred Case No. 24 of 1981 was originally filed in the High Court of Patna under Article 226 of the Constitution by two advocates — Shri D.N. Pandey and Shri Thakur Ramapati Sinha questioning the validity of the order of transfer of Mr. Justice M.M. Ismail. Chief Justice of the Madras High Court, as the Chief Justice of the Kerala High Court and the order of transfer of Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court as the Chief Justice of the Madras High Court. The allegations in this petition are substantially the same as those in Writ Petition No. 274 of 1981, in Transferred Case No. 2 of 1981 and in Transferred Case No. 6 of 1981. But during the pendency of this petition in this Court, Mr. Justice K.B.N. Singh who had been impleaded as a respondent was transposed as a petitioner by an order of this Court. Thereafter Mr. Justice K.B.N. Singh has filed an affidavit inter alia stating that his transfer was not in the public interest and that the transfer had been ordered on irrelevant and insufficient grounds. These allegations have been denied by the Union of India. It has stated in the counter-affidavit filed in support of its case that the transfer of Mr. Justice K.B.N. Singh had been made after full and effective consultation with the Chief Justice of India in the public interest keeping in view all relevant considerations. The Chief Justice of India has also filed a counter-affidavit to which detailed reference will be made in due course stating inter alia that Mr. Justice K.B.N. Singh had been transferred keeping in view all relevant matters in the public interest and not on any ground touching his character and conduct as a Judge.
949. India, that is Bharat, is a Union of States. It is not a federation of States like the United States of America. The word ‘federation’ is not used in the Constitution of India. There is no dual citizenship in India as we find it in the United States of America. The Constitution of India contemplates only one citizenship, only one loyalty and only one sovereignty. The geographical area covered by the States and the Union Territories mentioned in the First Schedule to the Constitution and such other areas that may be acquired constitute the territory of India which is an indivisible and indestructible whole though for administrative convenience is divided into States and Union Territories. Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; increase the area of any State; diminish the area of any State; alter the boundaries of any State and alter the name of any State in accordance with Article 3 and Article 4 of the Constitution. The principle of unity contemplated under the Constitution of India is much stronger than the principle underlying the Constitution of the United States of America. It is, therefore, necessary to remember and adopt it as our own rule of conduct what Washington wrote on June 8, 1783 in his message to the Governors of States in the United States of America. He wrote:
There are four things which. I humbry conceive, are essential to the well-being, I may even venture to say, to the existence of the United States, as an independent power. Firstly, an indissoluble union of the States under one Federal head; secondly, a sacred regard to public justice; thirdly, the adoption of a proper peace establishment; and, fourthly, the prevalence of the pacific and friendly disposition among the people of the United State, which will induce them to forget their local prejudices and policies: to make those mutual concessions, which are requisite to the general prosperity; and in some instances, to sacrifice their individual advantages to the interest of the community. These are the pillars on which the glorious fabric of our independency and national character must be supported.
(By courtesy: “The Constitution of India” by N.R. Raghavachariar (1951) P. 17).
950. A Constitution of a country is a living document and cannot, therefore, be interpreted in a narrow pedantic sense. A broad and liberal spirit should inspire those who are called upon to interpret the Constitution. This does not mean that they are free to stretch or pervert the language of the Constitution. The broad purposes and the general scheme of every provision in the Constitution, its history, its objects and the result which it seeks to achieve should always be kept in view. Current usage and a priori reasoning should also be used as the tools of interpretation of the constitutional provisions. The Constitution of India in order to ensure sound administration has entrusted separate powers to different organs of the State, charging all of them with the joint responsibility of securing to all citizens of India, justice, social, economic and political, liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The said joint endeavour involves co-operation, mutual sympathy and understanding amongst all the organs. The Constitution demands that there should be mutual trust amongst them and there should be no room for suspicion. Distrust and a feeling of suspicion on the part of any of the organs of the State towards any other organ is bound to result in a great national calamity. We have worked the Indian Constitution for more than thirty years. The Constitution has undergone many changes. At the end of three decades of experience one is bound to feel in the same way in which Thomas Jefferson felt about the Constitution of the United States of America in 1816. He wrote to Samuel Karcheval on July 12, 1816:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment, I knew that age well; I belonged to it, and laboured with it. It deserved well of its country, it was very like the present, and forty years of experience in government is worth a century of book reading and this they would say themselves, were they to rise from the dead.
951. We must while interpreting the Constitution realise that many of the difficulties that we may encounter now had not been foreseen by its makers. Application of constitutional provisions to actual facts of life therefore requires judicial statesmanship. The following words of Professor Frankfurter at Harvard University (who later became Justice Frankfurter) with reference to the American Constitution are equally apposite to our own:
Every legal system for a living society, even when embodied in a written Constitution must itself be alive. It is not merely the imprisonment of the past; it is also the unfolding of the future. Of all the means for ordering the political life of a nation, a federal sys-tem is the most complicated and subtle; if demands the most flexible and imaginative adjustments for harmonising national and local interests. The Constitution is not a printed finality but a dynamic process; its application to the actualities of Government is not a mechanical exercise, but a function of state-craft.
Let us now turn to the actual issues involved in these cases.
PART II
952. At the outset the question whether the petitioners who are advocates can file these petitions for the reliefs mentioned therein under Article 226 or Article 32 of the Constitution has got to be considered. The contention is that members of the Bar who are not personally affected by the circular letter of the Law Minister, by the appointment of certain additional Judges for short-terms of three months or six months, by the non-appointment of any of the additional Judges after the expiry of the tenure fixed under Article 224(1) or by the non-appointment of sufficient number of Judges of the High Courts or by the transfer of some Judges have no locus standi to file these petitions. It is contended that neither qualitatively nor quantitatively these petitioners have sufficient interest to prosecute these petitions the result of which would not affect them either directly or even indirectly.
953. The attitudes of the courts on the question of locus standi do not appear to be uniform. They vary from country to country, court to court and case to case. Sometimes the tests applied by courts also vary depending upon the nature of the relief sought. In some cases courts have taken a very narrow view on this question holding that unless an applicant has either personal or fiduciary interest in the result of the application, no relief can be granted on his application even though it may appear that the impugned action or omission of the administrative authority concerned is not in accordance with law. The other extreme view is that the courts may in their discretion Issue mandamus to an administrative authority at the instance of any member of the public. A close scrutiny of the authorities and texts cited before us shows that neither of the two extreme views is accepted as correct in majority of the cases. It is also seen that in many of them the courts have found some sort of special interest in the applicant which distinguishes him from the general public before granting the relief prayed for by him. A person who has a genuine grievance on account of an action which affects him prejudicially is ordinarily considered to be eligible to move the Court.
954. In England a member of the public who has no personal interest in the performance of a public duty by an administrative authority may as it may be done in India under Sections 91 and 92 of the Code of Civil P. C., 1908 in a limited and qualified way instead of himself approaching the Court, move the Attorney-General to initiate action in courts for the benefit of the public. If the Attorney-General is satisfied that action is called for in any given case, (he) as the nominal plaintiff in a relator action “can obtain an injunction to prohibit either some breach of the criminal law or else some ultra vires act by a public authority, such as illegal local government expenditure” — H.W.R. Wade, Administrative Law. Fourth Edition, page 493. The learned author proceeds to observe:
A similar practice seems to be developing in actions brought by private plaintiffs — despite the ‘fundamental rule that the court will only grant an injunction at the suit of a private individual to support a legal right’. This, if it continues, may turn the injunction into a more general remedy of public law. Another consequence will be that there will be problems of standing, since a plaintiff without a personal legal right may be required to show that he has a sufficient interest to maintain the action.
955. If the Attorney-General declines to give his consent to a relator action the Court cannot question his exercise of discretion. This was firmly settled by the House of Lords in Gouriet v. Union of Post Office Workers (1973) AC 435 (CA) reversing a bold decision rendered by Lord Denning in the Court of Appeal in Gouriet v. Union of Post Office Workers (1977) 1 All ER 696 (CA) in which he had observed at page 719 thus:
…When the Attorney-General comes, as he does here and tells us that he has a prerogative — a prerogative by which he alone is the one who can say whether the criminal law should be enforced in these courts or not — then I say he has no such prerogative. He has no prerogative to suspend or dispense with the laws of England. If he does not give his consent, then any citizen of the land — any one of the public at large who is adversely affected — can come to this Court and ask that the law be enforced. Let no one say that in this we are prejudiced. We have but one prejudice. That is to uphold the law. And that we will do, whatever, befall. Nothing shall deter us from doing our duty’.
956. After his decision was reversed by the House of Lords, Lord Denning in his book entitled ‘The Discipline of Law’ page 144 wrote thus:
In administrative law the question of locus standi is the most vexed question of all. I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this or that government department — or this or that local authority — or this or that trade union — is abusing or misusing its power — I always like to hear what he has to say. For I remember what Mr. T.P. Curran of the Middle Temple said in the year 1790:
It is ever the fate of the indolent to find their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance’. The ordinary citizen who comes to the Court in this wav is usually the vigilant one. Sometimes he is a mere busybody interfering with things which do not concern him. Then let him be turned down. But when he has a point which affects the rights and liberties of all the citizens, then I would hope that he would be heard: for there is no other person or body to whom he can appeal. But I am afraid that not everyone agrees with me.
957. The House of Lords having ruled in the Gouriet’s case (1978) AC 435 (supra) the Court’s jurisdiction in England appears to have been confined to declaring contested legal rights subsisting or future, of the parties and of them only when the Attorney-General does not intervene. This is a step which the House of Lords appears to have taken with a view to stalling a new trend in public interest litigation which had been set by Blackburn v. Attorney-General (1971) 1 WLR 1037 (CA) and Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority (1973) QB 629.
958. After the decision of the House of Lords in Gouriet’s case (1978) AC 435 (supra) it is noteworthy that Order 53 was introduced into the Rules of the Supreme Court in England in the year 1977. The relevant part of Order 53 which took effect on January 11, 1978, some six months after the decision in Gouriet’s case reads:
1. — (1) An application for — (a) an order of mandamus, prohibition or certiorari…shall be made by way of an application for judicial review in accordance with the provisions of this Order.
(2) An application for a declaration or an injunction (not being an injunction mentioned in paragraph (1) (b)) may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to — (a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari, (b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and (c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
2. On an application for judicial review any relief mentioned in Rule 1(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.
3. (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
(2) An application for leave must be made ex carte to a Divisional Court of the Queen’s Bench Division.
(3)-(4) …
(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates….
959. It appears that Order 53 was designed to stop technical procedural arguments of many types which had marred the true administration of justice, and to provide a machinery to determine at the preliminary stage of the granting of leave to prosecute an application for judicial review, whether the applicant has a sufficient interest in the matter to which the application relates. The phrase ‘sufficient interest’ which, it is stated, owed its origin to an interlocutory observation made by the Court in R v. Gotham (1898) 1 QB 802 at p. 804 and to its use by Avory, J. in his judgment in Ex parte Stott (1916) 1 KB 7 at p. 9 embraced all kinds of phrases ‘a party’, ‘a person aggrieved’, ‘a person with a particular grievance’ etc. used in various cases where the locus standi of the applicant concerned was questioned. After the aforesaid Order 53 came into force the application out of which the case Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1981) 2 All ER 93 decided on April 9. 1981 by the House of Lords arose was instituted before the Queen’s Bench. The facts of the case were these: There was a long standing practice in Fleet Street for casual employees on national newspapers to receive their wages without deduction of tax and to supply fictitious names and addresses when drawing their pay in order to avoid tax Their true identities were known only to their unions which operated a closed shop and controlled all casual employment on the newspapers. In order to prevent the evasion of tax by the casual employees, the Revenue made a special arrangement with the employers, the employees and the unions whereby the employees were required to register with the Revenue and submit tax returns for the previous two years (1977-78 and 1978-79) in return for an undertaking by the Revenue that they would not investigate tax evaded prior to 1977. The applicant, a federation of self-employed persons and small businessmen which claimed to represent a body of taxpayers, applied for judicial review under RSC Order 53 seeking (i) a declaration that the Revenue had acted unlawfully in making the arrangement and (ii) an order of mandamus directing the Revenue to assess and collect tax on the newspaper employees as required by law. The Revenue opposed the application on the ground that the applicant did not have ‘a sufficient interest in the matter’ relating to the application, as required by Order 53, Rule 3(5) for the Court to grant it the necessary leave to apply for judicial review. The Divisional Court upheld that contention and refused the applicant leave. The applicant appealed to the Court of Appeal which held that, as a preliminary issue and on the assumption that the Revenue had acted unlawfully, the applicant was not a mere busybody but had a genuine grievance and therefore had a sufficient interest for the purpose of Rule 3(5). The Revenue appealed contending that the duties imposed on them by the tax legislation, including in particular the duty of confidentiality as between the Revenue and each individual taxpayer, precluded the possibility of any other taxpayer or group of taxpayers from having any ‘sufficient interest’ in the performance by the Revenue of their statutory duties. The House of Lords held inter alia that whether an applicant for mandamus had a sufficient interest in the matter to which the application related, for the purposes of Order 53, Rule 3(5) depended on whether the definition (statutory or otherwise) of the duty alleged to have been breached or not performed expressly or impliedly gave the applicant the right to complain of the breach or non-performance. Since the tax legislation, far from expressly or impliedly conferring on a taxpayer the right to make proposals about another’s tax or to inquire about such tax, in fact indicated the reverse by reason of the total confidentiality of assessments and negotiations between individuals and the Revenue, and since on the evidence the Revenue in making the impugned arrangement were genuinely acting in the care and management of taxes under the powers entrusted to them, the application made by the applicant should be dismissed because the applicant did not have a sufficient interest for the purposes of Rule 3(5), or (per Lord Diplock) because it had not been shown that the Revenue had acted ultra vires or unlawfully in making the arrangement. Lord Wilberforce added that as a matter of general principle a taxpayer had no sufficient interest in asking the Court to investigate the tax arrears of another taxpayer or to complain that the latter had been under assessed or overassessed; indeed there was a strong public interest that he should not. Accordingly the appeal was allowed and the original application was dismissed.
960. In Canada, however, the rule has been that the principle requiring personal standing ‘applies to legislation of a regulatory character which affects particular persons or classes but where no particular persons or classes are affected more than others, where the issue is justiciable and where the nature of the case is suitable the Court may grant declaratory relief to any citizen at its discretion as can be seen from the decision of the Supreme Court of Canada in Thorson v. Attorney-General of Canada (No. 2) (1974) 43 DLR (3d) 1, Dealing with the right of a taxpayer to dispute the constitutional validity of the Official Languages Act in Canada, Laskin, J. observed in that case thus:
It is not the alleged waste of public funds alone that will support standing but rather the right of the citizenry to constitutional behaviour by Parliament, where the issue in such behaviour is Justiciable legal question.
961. In Australia the prevailing view appears to be that in matters affecting public generally in order to maintain a petition for the issue of a direction to an administrative authority to act according to law ‘while something less than an enforceable right would be sufficient, there nevertheless must be some special right in the prosecutor, over and above those held by the public at large or by all members of a particular class to which he belongs’ (vide W. Friedmann:
Principles of Australian Administrative Law’ (Second Edition) pace 180).
962. The question of locus standi of a petitioner under Article 226 of the Constitution was considered by this Court in Godde Venkateswara Rao v. Govt of Andhra Pradesh . The facts necessary for appreciating the point decided in that case and the decision of this Court on the locus standi of the petitioner therein can be seen from the following passage occurring at p. 181 (of SCR) : (at p. 833 of AIR).
Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharamajigudem. The villagers of Dharamajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health center. The said committee collected Rs. 10,000/- and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health center at Dharamajigudem. His conduct, the acquiescence on the Dart of the other members of the Committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorised to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustee of the amounts collected by it from the villagers for a public purpose. We have, there-fore, no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra that “ordinarily” the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interests. It can alto relate to an interest of a trustee. That apart, to exceptional cases, as the expression “ordinarily” indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance, therefore, is maintainable.
(emphasis added).
963. In Adi Pherozshah Gandhi v. H.M. Seervai. Advocate General of Maharashtra, Bombay , the expression ‘person aggrieved’ found in Section 37 of the Advocates Act, 1961 was considered by this Court. The appellant in that case was an advocate of Maharashtra. He was convicted by a Summary Court in London on a charge of pilfering from a Departmental Store and was sentenced to pay a fine. The State Bar Council called upon him suo motu to show cause why he should not be held guilty of misconduct. He submitted his explanation and the Disciplinary Committee of the Bar Council was satisfied that there was no reason for holding him guilty of professional misconduct. The Advocate-General of the State who had sent a notice of the proceedings as required by Section 35(2) of the Advocates Act, 1961, and had appeared before the Disciplinary Committee, filed an appeal to the Bar Council of India under Section 37 of that Act, under which, any person aggrieved by an order of the Disciplinary Committee of the State Bar Council made under Section 35 of that Act, could prefer an appeal to the Bar Council of India. The appellant objected that the Advocate-General had no locus standi to file the appeal. The objection was overruled by the Disciplinary Committee of the Bar Council of India and the appellant was found guilty of professional misconduct. After examining the decision of the Privy Council in Attorney-General of the Gambias v. Pierre Sarr N’Jie (1961) AC 617 and other decisions cited before it, this Court held that the Advocate-General of Maharashtra could not be treated as a ‘person aggrieved’ who was entitled to file an appeal under Section 37 of the Advocates Act. The entire decision was based on the construction of the provisions (as they stood then) of the statute concerned, as it appeared to the Bench which decided the case. It may be noted that Section 37 of the Advocates Act has since been amended authorising the Advocate-General of a State expressly to file an appeal. In Bar Council of Maharashtra v. M.V. Dabholkar the interpretation of the words ‘person aggrieved’ in the Advocates Act, 1961, again came up for consideration by this Court. In that case the right of the State Bar Council to file an appeal against the decision of the Bar Council of India before this Court was challenged on the ground that it was not an aggrieved party. That contention was negatived by Ray. C. J. by Riving a liberal interpretation to the words ‘person aggrieved’ with the following observation at page 315 (of SCR) ; (at p. 2098 of AIR):
The words “person aggrieved” are found in several statutes. The meaning of the words “person aggrieved” will have to be ascertained with reference to the purpose and the provisions of the statute. Sometimes, it is said that the words “person aggrieved” correspond to the requirement of locus standi which arises in relation to judicial remedies.
Where a right of appeal to Courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words “a person aggrieved” may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words “a person aggrieved” is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words “person aggrieved” in Sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words “person aggrieved” include “a person who has a genuine grievance because an order has been made which prejudicially affects his interests”. It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette.
The pre-eminent question is: what are the interests of the Bar Council? The interests of the Bar Council are the maintenance of standards of professional conduct and etiquette. The Bar Council has no personal or pecuniary interest. The Bar Council has the statutory duty and interest to see that the rules laid down by the Bar Council of India in relation to professional conduct and etiquette are upheld and not violated. The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the advocates as well as the purity and dignity of the profession.
The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the disciplinary committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar.
964. The above two decisions are in cases in which writs in the nature of certiorari were sought. This Court has however in cases in which writs in the nature of habeas corpus or of quo warranto are prayed for relaxed the rule that ordinarily an applicant under Article 226 should show that some personal right or fiduciary interest is prejudiced by the action or inaction of the authority concerned.
965. In Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed , this Court observed that “while a procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a ‘stranger’ unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests”.
966. In Fertilizer Corporation Kamgar Union (Regd.) Sindri v. Union of India the right of workers in a factory owned by Government to question the validity of a disposal of plant and equipment of the factory by the management was disputed. On that question Chandrachud. C. J. observed:
That disposes of the question as regards the maintainability of the writ petition. But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The quest on whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective because the parliamentary control of public enterprises is “diffuse and haphazard”. We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.
967. In the same case Krishana Iyer, J. after an elaborate discussion of the principle of ‘locus standi’ observed at pp. 76-77 (of SCR) : (at pp. 356, 357 of AIR) thus:
In the present case a worker, who, clearly, has an interest in the industry, brings this action regarding an alleged wrong-doing by the Board of Management. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector. Locus standi and justiciability are different issues, as I have earlier pointed out….
If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But if he 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. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.
968. In Municipal Council, Ratlam v. Vardhichand , Krishna Iyer, J. upheld the right of the people who were residents of Rat-lam town to institute a case against its Municipal Council ventilating a public grievance thus:
It is procedural rules’ as this appeal proves, ‘which infuse life into substantive rights, which activate them to make them effective’. Here, before us, is what looks like a pedestrian quasi-criminal litigation under Section 133 Cr. P. C., where the Ratlam Municipality — the appellant — challenges the sense and soundness of the High Court’s affirmation of the trial court’s order directing the construction of drainage facilities and the like, which has spiralled up to this Court. The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the center of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a path-finder in the field of people’s involvement in the Just icing process, sans which as Prof. Sikes points out, the system may ‘crumble under the burden of its own insensitivity’. The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. At issue is the comma of age of that branch of public law bearing on community actions and the court’s power to force public bodies under public duties to implement specific plans in response to public grievances.
969. All these Transferred petitions were filed initially by advocates under Article 226 of the Constitution before one or the other High Court. The Writ Petition however is filed by an advocate under Article 32 of the Constitution before this Court. The petitioners belong to different High Court Bars — Allahabad, Bombay. Madras. Patna and Delhi — and to the Supreme Court Bar. One important prayer made by them is that the Government should be directed to appoint sufficient number of permanent Judges in every High Court. The other points urged by them are that additional Judges should not be appointed for short terms like three months or six months, that Judges should not be transferred from one High Court to another without their consent and that the circular letter of the Law Ministry should be quashed. Their principal submission is that appointment of additional Judges for short terms and their transfer without their consent would interfere with the independence of the judiciary and would violate the directive principle of State policy contained in Article 50 of the Constitution which requires the State to take steps to separate the judiciary from the executive in the public services of the State. Whatever may be the position with regard to the other prayers made in these petitions, it is difficult to hold that on the first two questions the petitioners can be held to be having no ‘standing’ to file the petitions. It is no doubt true that the power to fix the number of permanent Judges to be appointed in each High Court is within the discretion of the President. But that power is coupled with a duty which the President owes to the public in general and to the lawyers and litigants in particular. If at any given point of time is found that the number of Judges in a High Court is absolutely inadequate to meet its requirements, the members of the Bar who are vitally interested in the administration of justice can file a petition before the High Court to compel the Government to review the strength of the permanent Judges of that Court and to appoint adequate number of Judges. The members of the Bar are not called officers of courts only to impose obligations on them. They have certain rights too. It is significant that Article 124(3)(b), Article 217(2)(b) and Article 233(2) of the Constitution specifically state that the legal profession is a source of recruitment of Judges of the Supreme Court, High Courts and District Courts. Entries 77 and 78 of List I of the Seventh Schedule to the Constitution specifically refer to persons entitled to practice before the Supreme Court and the High Court. Section 29 of the Advocates Act, 1961, provides that only one class of persons can practise the profession of law, namely, advocates. Members of the Bar have a vital stake in the functioning of the judiciary, Members of the Bar and even litigants whose cases have remained undisposed for a long number of years on account of the Government not appointing sufficient number of Judges can therefore file a petition demanding appointment of sufficient number of permanent Judges in High Courts. The power under Article 216 of the Constitution is an administrative power which can be regulated in an appropriate way by the courts like any other administrative power. It is not a matter of policy simpliciter. The question of appointment of sufficient number of additional Judges under Article 224(1) of the Constitution for the required period having regard to the arrears or the quantum of business in a High Court can also be agitated by lawyers and litigants. It is true that the Court should not ordinarily issue a mandamus in such cases unless it is satisfied that there has been a gross dereliction of duty on the part of the Government. That however is a point to be considered before granting or refusing to grant the relief. But it cannot in any event be said that a petition filed by lawyers for the abovesaid reliefs is liable to be dismissed at the threshold merely on the ground of locus standi. The petitioners satisfy all the tests which are laid down in the decisions referred to above to maintain the petitions on the two questions referred to above. During the pendency of these petitions) two further circumstances have come into existence. Mr. S.N. Kumar who was an additional Judge of the Delhi High Court when the petition of Shri V.M. Tarkunde was filed in the High Court has ceased to be an additional Judge as his term was not extended beyond June 6, 1981, He has, though as a respondent, by filing necessary pleadings questioned the action of the Government in not extending his term and also the validity of the circular letter of the Law Minister. In the case relating to the transfer of Shri K.B.N. Singh, Chief Justice of Patna High Court as Chief Justice of Madras High Court, he has been permitted to be transposed as the petitioner. He has filed an additional affidavit challenging the order of transfer. In view of these new circumstances much of the sting in the objection to the locus standi of the original petitioners to file the petitions is lost. It must also be stated that the learned Attorney-General also stated at the commencement of the hearing of these cases that he would not press his objection relating to the locus standi of the petitioners having regard to the magnitude and the importance of the constitutional questions involved in the cases.
970. But Shri P.R. Mridul, learned Counsel appearing for the Law Minister, however, contends that the lawyers either as a class or individually cannot be permitted to file petitions for the issue of any direction to the Government concerning the appointment or transfer of Judges. He has depended upon the writings of L.A. Stein. S.M. Thio, Joel Grossman and Richard S. Wells and Louis L. Jaffe and a number of decisions in support of his submission. He has quoted copiously from ‘judicial Protection Against The Executive’ published by the Max Planck Institute. Shri Mridul argues that an applicant must show that he has a legal OR some special interest which is sufficient In law to move the Court and that the duty which is sought to be enforced i owed to him. I haw carefully considered his submission, The conclusion reached by S.M. Thio in his essay entitled ‘Locus Standi in Relation to Mandamus’ at page 133 in public Law, edited by J.A.G. Griffith on which Shri Mridul has relied is of significance. It runs thus:
It may be seen from the above analysis of the cases that the uncertainty surrounding the locus standi of an applicant for. mandamus is largely attributable to the variety of formulae employ-ed by the courts to describe the nature of the interest required to support as application for mandamus, some of which are conflicting and others ambiguous. The employment of the traditional syntax or a “legal right” to describe the requisite interest coupled with the assertion that a mandamus applicant must! show that the duty is owed to him personally has established two particular points. On the one hand, a strict rule limiting standing to a person who has a litigable right within the categories of private law. On the other hand, the courts have, in the absence of such a litigable right, accorded standing to a person who made out a “special interest” in the performance of the duty sought to be enforced The courts, in some of these cases, paid lip service to the “legal right” test, but obviously using the term to connote any interest judicially recognised as worthy of protection rather than a right the invasion of .which gives rise to civil actionability. They have in the other cases, directly held it sufficient for a mandamus applicant to establish a “special interest” in order to have locus standi. As has been seen, the various judicial pronouncements requiring an applicant to show that the duty the performance of which is sought to be secured is one owed to him personally may be discounted since they were designed to bring out the point that where the repository of the duty was a Crown servant, it was imperative for the applicant to show that the duty was not on sowed to the Crown, but that it was imposed on the Crown servant as persona designate and hence amenable to mandamus. On balance, the weight of authorities favour the more liberal “special interest” test under which the courts have accorded standing to persons who, have a direct and substantial interest at stake. This is necessarily a matter of Judicial discretion, However, the preponderance of cases reveal that (1) Where the duty sought to his (SIC)-forced is imposed on a public official or a public body for the benefit of a specific class of persons, persons within the class are competent to apply for mandrel (SIC)mug without further ado, Pereons out the class may have locus stoned they have a special interest in its performance i.e. an interest over and above that of the general public.
(2) Where the duty sought to be secured is a general one and is not specifically imposed for the benefit of a particular class of persons, the mandamus applicant must satisfy the “special interest” test. Where the failure to perform the duty has a de facto adverse effect on a class of persons over and beyond that sustained by the general public, any member of that class is competent to apply for mandamus without showing that he is more prejudiced than other members of the class. However, where the non-performance of the duty theoretically affects a class of persons more than the general public, but in actuality has only de facto effect on some members of the class, the mandamus applicant will probably have to show that his interest is more substantial than that of the interest-group to which he belongs.
971. Shri Mridul however fairly concedes that litigations of class character or public interest litigations (which may be called public injury cases) are an essential feature of modern civilised jurisprudence and there is no gainsaying the fact that in these cases of public wrongs and public injury a liberal approach is adopted by the courts to reach all forms of injustice particularly where prisoners, lunatics, minors and other weaker sections of people who cannot have access to court owing to their helplessness are involved. In support of this statement, he has brought to our notice the decision of this Court in Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai . in which Krishna Iyer. J. has observed thus:
Fairness to respondent’s counsel constrains us to consider in liming a flaw some plea forcibly urged that the Union figured as the appellant before us but being no party to the dispute (which was between the workers on the one hand and the establishments on the other) had no locus standi. No right of the Union qua Union was involved and the real disputants were the workers. Surely there is terminological lapse in the cause-title because, in fact, the aggrieved appellants are the workers collectively, not the Union. But a bare reading of the petition the description of parties, the grounds urged and grievances aired, leave us in no doubt that the battle is between the workers and employers and the Union represents, as a collective noun. as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances, fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, rough-and-ready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleading and setting out the cause-title create a secret weapon to non-suit a party. Where foul play is absent and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural short-comings. Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus ‘stand! in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to Invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. Therefore, the decisions cited before us founded on the jurisdiction under Article 226 are inept and themselves somewhat out of tune with the modern requirements of juries prudence calculated to benefit the community.
972. Yet the contention of Shri Mridul is that even though the lawyers constitute a special group who can be said to be concerned with the administration of Justice in the sense of having a professional interest in connection therewith, that by itself is not sufficient for holding that they can file the petitions in respect of the relief’s prayed for by them which concern only the Judges and not the lawyers. He strongly pressed before us the view expressed by this Court in the State of Gujarat v. Ambica Mills Ltd., Ahmedabad . I find that the said decision has not much relevance on the question before us and it is not necessary to deal with it at length.
973. It is also difficult to hold that the recognition of the ‘standing’ of the lawyers to file these petitions would in any way interfere with the doctrine of separation of powers since it is not the case of Shri Mridul that a person who has indisputably the right to file these petitions cannot in law raise the Questions urged before us in these cases. If the issues are no unjustifiable, the petitions may have to be dismissed on the ground that the impugned administrative action is beyond judicial review but this has no bearing on the question of ‘locus standi’ of the petitioners, who are lawyers. Lawyers are entitled to* approach the Court to direct the Government to appoint sufficient number of permanent Judges and to appoint sufficient number. of additional Judges for the maximum period of two years having regard to the arrears and the business of the Court. They may also legitimately agitate that additional Judges should not be appointed when permanent vacancies have remained unfilled for no good reason.
974. It has, however, to be made clear that it cannot be said that lawyers only because they have a right to practice in a court have ‘locus standi’ to file petitions in respect of every matter concerning judges, courts and administration of justice. There are many such matters in which they have no ‘locus standi’ to ask for relief. By way of illustration, lawyers cannot question the establishment of a new court on the ground that their professional prospects would be affected thereby. (See V.R. Mudvedkar v. State of Mysore AIR 1971 Mys 202. Even in these cases on the question of non-appointment of Mr. S.N. Kumar and on the question of transfer of Mr. K.B.N. Singh, the lawyer-petitioners may have no voice. But for the active participation of these two persons, the petitions regarding relief’s concerning them individually would have probably become liable to be dismissed on the ground that the lawyers have no ‘locus standi’ to make these prayers.
974A. But, since as already stated, Mr. S.N. Kumar and Mr. K.B.N. Singh-have requested the Court to consider and if thought fit to grant relief in their favour and the learned Attorney-General has fairly stated that he would not raise the objection that the petitioners have no locus standi in view of the importance of the questions debated in these cases, we hold that the petitions cannot be rejected merely on the ground that the petitioners who are lawyers have no locus standi to file these petitions. Before leaving this topic, it has to be observed that the question of locus standi in the field of administrative law is still in a fluid state and it is not possible to lay down in any one case the principles which can govern all situations:
PART III
975. The Court cannot also decline to go into the question agitated in these petitions on the ground that they are political questions or questions within the exclusive domain of executive discretion. The doctrine of political question which was holding the field long time back in the United States of America has now been exploded. It had been assumed for sometime that the courts would not adjudicate claims to power by the legislative and executive branches because they presented ‘political’ and therefore non-justifiable questions. This claim was based on the principle of separation of powers recognised by the Constitution of the United States of America. Alexis de Tocqueville was one of the earliest writers who challenged in the year 1835 itself the correctness of the doctrine of political question. He said in his book entitled ‘Democracy in America’ (published by Oxford University press in 1961. p. 82) thus:
But the American Judge is brought into the political arena independently of his own will. He only judges the because he is obliged to judge a case, The political question which he is called upon to resolve is connected with the Interest of the suitors, and he cannot refuse to decide it without abdicating the duties of his post.
976. It should, however, be borne in mind that separation of powers does not mean a rigid analytical division. It is a general guiding principle. As Wood-row Wilson put it in 1908.
… government is not a machine but a living thing…. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose…. Their cooperation is indispensable, their warfare fatal.
(Wilson; ‘Constitutional Government in the United States’ 56 (1908))
977. Each one of the organs of the State — the legislature, the executive and the judiciary — has to discharge its legitimate duties having sound administration as the common goal.
978. The doctrine of political question was examined in the year 1962 by the Supreme Court of the United States of America in Baker v. Carr (1962) 369 UC 186 : 7 Led 2d 663, That was a civil action in which the complaint was that the plaintiffs and others similarly situated had been denied equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States of America by virtue of debasement of their votes by reason of unconstitutional division of their electoral area situated in the State of Tennessee, The District Court dismissed their claim on two grounds namely, lack of jurisdiction over the subject matter and that the action was a non-justifiable one. The Supreme Court of the United States of America reversed the judgment of the court below and remanded the casa to the District Court to ‘dispose ” of In the light of its decision, The Supreme Court held that the complaint of the appellants involved a Justifiable cause upon which they were entitled to a trial and a decision, Brennan, J. who delivered the judgment on behalf of six of the Judges, in the course of his decision, observed at page 691 thus:
We come, finally, to the ultimate inquiry whether our precedents as to constitutes a non-justifiable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the -common characteristics which we have been able to identify and label descriptively are present We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court, Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take Issue with Tennessee as to the constitutionality of her action here- challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy but simply arbitrary and capricious action.
979. In Powell v. MeCormack (1969) 395 US 486 : 23 L Ed 2d 491 the label of political question was considered a misnomer and all cases in which such a plea was raised were cases in which really the question of jurisdiction of the court to decide the issue arising in them had been canvassed. The plaintiff in that case Adam Clayton Powell Jr. was duly elected from a congressional district of New York as a member of the . United; States House of Representatives in 1968, However, pursuant to a House resolution he was not permitted to take his seat on the ground that he had earlier wrongfully diverted House funds, had made false reports regarding foreign currency etc. Powell along with some others who were voters in the constituency then filed a suit claiming that the House could exclude him only if it found that he failed to meet the standing requirements of age, citizenship and residence contained in Clause (2) of Article I of the Constitution of the United States of America and thus had excluded him un-constitutionally. The District Court dismissed the suit for want of jurisdiction over the subject matter. The Court of Appeal affirmed the dismissal al-though on somewhat different grounds. One of the points raised before the Supreme Court of the United States of America was that the question involved was a political question and hence was not justifiable. The Supreme Court held that it was an error to dismiss the suit and remanded it for disposal in accordance with law. Chief Justice Warren who spoke for the Court disposed of the defense based on political question at page 532 thus:
(25) Respondents’ alternate contention is that the case presents a political question because judicial resolution of petitioners’ claim would produce a “potentially embarrassing confrontation between coordinate branches” of the Federal Government. But, as our interpretation of Article 1 5, discloses a determination of petitioner Powell’s right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a “lack of the respect due to (a) coordinate branch of government”, nor does it involve an “initial policy determination of a kind clearly for non-judicial discretion”. Baker v. Carr 369 US 186 at 217 : 7 L Ed 2d 663 at 686. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility….
XXX XXX XXX XXX Thus, we conclude that petitioners claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justifiable, we hold that the case is justifiable.
980. In sum, the political question doctrine, according to R. Berger, interposes no obstacle to judicial determination of the rival legislative-executive claims to receive or without information. The power to decide these claims plainly has not been lodged in either the legislative or the executive branch; equally plainly, the jurisdiction to demarcate constitutional boundaries between the rival claimants has been given to courts. The situation is the same when private parties are involved. This rule, of course, is subject to considerations such as national security and diplomatic relations. This appears to be the position in the United States of America.
981. In our country which is governed by a written Constitution also many questions which appear to have a purely political colour are bound to assume the character of Judicial Questions, In the State of Rajasthan v. Union of India the Government’s claim that the validity of the decision of the President under Article 356(1) of the Constitution being political in character was not justifiable on that sole ground was rejected by this Court. Bhagwati, J. in the course of his Judgment observed in that case at pages 80-81 (of SCR) : (at pp, 1413. 1414 of AIR) thus:
It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare “judicial hands off”. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it. it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is Suprema lex, he paramount law of the land, and there is no department or branch of government above or beyond it, Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if no, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.
982. The objection that the questions involved in these petitions are non-Justifiable merely on the ‘ground that they are political in character has to begatived. But it is made clear that the courts are not entitled to enquire into every sort of question without any limitation. There is still a certain class of questions such as international relations, national security which cannot be entertained by the Court It is for the Court to determine in each case whether a particular question should be debated before it or not.
983. The questions raised in these petitions will be considered hereafter.
PART IV
984. We are concerned in these cases with High Courts and Judges of High Courts in our country.
985. Speaking on the nature of the Draft Constitution. Dr. Ambedkar in his speech delivered On November 4, 1948, in the Constituent Assembly said:
All federal systems including the American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape. It can never be unitary. On the other hand the Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances….
There is another special feature of the proposed Indian Federation which distinguishes it from other federations. A Federation being a dual polity based on divided authority with separate legislative, executive and judicial powers for each of the two polities is bound to produce diversity in laws, in administration and in judicial protection. Up to a certain point this diversity does not matter. It may be welcomed as being an attempt to accommodate the powers of Government to local needs and local circumstances, But this very diversity when it goes beyond a certain point is capable of producing chaos and has produced chaos in many federal States. One has only to imagine twenty different laws — if we have twenty States in the Union — of marriage, of divorce, of inheritance of property, family relations, contracts, torts, crimes, weights and measures, of bills and cheques, banking and commerce, of procedures for obtaining justice and in the standards and methods of administration. Such a state of affairs not only weakens the State but becomes intolerant to the citizen who moves from State to State only to find that what is lawful in one State is not lawful in another. The Draft Constitution has sough forge means and methods whereby India will have Federation and at the same time will have uniformity in all the basic matters which are essential to maintain the unity of the country. The means adopted by the Draft Constitution are three.
(1) a single judiciary, (2) uniformity in fundamental laws, civil and criminal, and (3) a common All India Civil Service to man important posts.
A dual judiciary, a duality of legal codes and a duality of civil services, as I said, are the logical consequences of a dual polity which is inherent in a federation. In the U.S.A. the Federal Judiciary and the State Judiciary are separate and independent of each other. The Indian Federation though a Dual Polity has no Dual Judiciary at all. The High Courts and the Supreme Court form one single integrated Judiciary having jurisdiction and providing remedies in all cases arising under the constitutional Jaw, the civil law or the criminal law. (Constituent Assembly Debates, vol. 7 (1948-49) at pp. 34, 36-37).
986. The High Courts in India are established by the Constitution. Article 376 of the Constitution, however, provided for the continuance of the Judges of a High Court in any Province holding office immediately before the commencement of the Constitution as Judges of the new High Court in the corresponding State. Article 376 of the Constitution reads:
376. (1) Notwithstanding anything in Clause (2) of Article 217, the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under Article 221 in respect of the Judges of such High Court.
Any such Judge shall, notwithstanding that he is not a citizen of India, be eligible for appointment as Chief Justice of such High Court, or as Chief Justice or other Judge of any other High Court.
(2) The Judges of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in Clauses (1) and (2) of Article 217 but subject to the proviso to Clause (1) of that article, continue to hold office until the expiration of such period as the president may by order determine.
(3) In this article, the expression “Judge” does not include an acting Judge or an additional Judge.
987. After the commencement of the Constitution, the new High Courts were allowed to exercise the jurisdiction of the existing High Courts, until it was duly altered by appropriate Legislature, by virtue of Article 225 of the Constitution which reads:
225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts shall be the same as immediately before the commencement of this Constitution.
Provided that any restriction to which the. exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall is longer apply to the exercise of such jurisdiction.
988. Some of the High Courts came to be constituted or reconstituted after the commencement of the Constitution under different laws made by the Parliament. An analysis of the various provisions of the Constitution and other laws having a bearing on the question shows that every High Court in India is an integral part of a single Indian judiciary and Judges who hold the posts of Judges of High Courts belong to a single family even though there may be a slight variation in two of the authorities who are required to be consulted at the time of the appointment, The provisions dealing with the High Courts are found in Chapter V in Part VI of the Constitution containing provisions governing the States and the salaries of the Judges of a High Court are paid out of the funds of the State or States over which it exercises jurisdiction. Yet it is difficult to say that each High Court is independent of the other High Courts. A perusal of the other provisions in that Chapter shows that the State Legislatures and the State Governments have very little to do so far as the organization of the High Courts is concerned. Article 366(14) of the Constitution states that a ‘High Court means any Court which is deemed for the purposes of this Constitution to be a High Court for any State and includes (a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court and (b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution’.
989-990. Article 214 of the Constitution as it was originally enacted read:
214. (1) There shall be a High Court for each State, (2) For the purposes of this Constitution the High Court exercising jurisdiction in relation to any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State.
(3) The provisions of this Chapter shall apply to every High Court referred to in this article.
Clauses (2) and (3) of Article 214 were omitted by the Constitution (Seventh Amendment) Act, 1956 and Article 214(1) was renumbered as Article 214. Clause (2) of Article 214 contained the necessary ‘deeming’ provision under which the High Courts exercising jurisdiction in any Province immediately prior to the commencement of the Constitution became High Courts under the Constitution as per definition contained in Article 366(14) of the Constitution. Clause (3) of Article 214 stated that Chapter V in Part VI of the Constitution did not apply to any particular High Court but generally to all the High Courts thereby suggesting that this Chapter could have very well been included in a separate part of the Constitution. The legislative power to constitute a High Court is vested in the Parliament by Entry 78 of List I of the Seventh Schedule to the Constitution which reads:
78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.
991. It is today quite possible for the Parliament to pass a common High Courts Act governing all the High Courts in India replacing the existing laws governing them.
992. The appointment of a Judge of a High Court is made by the President in consultation with the Chief Justice of India, the Governor of the State concerned and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. A Judge may by writing under his hand addressed to the President resign his office. He is removable from office by the order of the President passed after an address by Parliament presented in the manner provided in Article 124(4) of the Constitution for the removal of a Judge of the Supreme Court, Article 222 of the Constitution states that the President may after consultation with the Chief Justice of India transfer a Judge from one High Court to any other High Court without any kind of consultation with the Governors of the States concerned or the Chief Justices of those High Courts, Article 224-A of the Constitution’ inter alia provides that notwithstanding anything contained in Chap. V in Part VI of the Constitution, 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 hag held the office of a Judge of that Court or any other High Court to sit and act as a Judge of the High Court for that State. Under para. 11 (b) (i) of the Second Schedule to the Constitution, the time spent by a Judge of any High Court on duty as a Judge or in the performance of such other functions (including functions connected with a different State) as he may at the request of the President undertake to discharge is treated as factual service’. Under Article 231 of the Constitution, Parliament may by law establish a common High Court for two or more States or for one or more States and a Union Territory. Article 139A(2) of the Constitution empowers the Supreme Court to transfer any case, appeal or other proceeding pending before a High Court to any other High Court. By virtue of the proviso to Clause (1) of Article 356 of the Constitution the powers vested and exercisable by a High Court remain unaffected by any proclamation issued under Article 356(1) by the President in relation to a State over which the High Court is exercising jurisdiction. These provisions indicate that all the High Courts organically form integral parts of a single system although their territorial jurisdictions are denned. No High Court can claim any superiority over the other either on the basis of its situation or on the basis that it is a successor to a High Court which was functioning in any Province immediately before the commencement of the Constitution or on the basis of the extent of its territorial jurisdiction. All the High Courts have the same status under the Constitution:
PART V
993. The scope of the power of the President to appoint Judges of the High Courts under Article 217(1) of the Constitution may be considered now. It may be appropriate to refer here to the position prevailing under the Government of India Article 1935. Under Section 220(2) of that Act every Judge of a High Court was to be appointed by His Majesty and he could hold office until he attained the age of sixty years. He was liable to be removed from his office by His Majesty on the ground of misbehavior or of infirmity of mind or body if the Judicial Committee of the Privy Council On a reference being made to them by His Majesty reported that he ought on any such ground to be removed. The appointment of a Judge of a High Court under the Government of India Act, 1935 was thus a Crown appointment. The Governor-General was. however, given the power under Section 222 of that Act to appoint additional or acting Judges on behalf of the Crown for a temporary period. There was no requirement of any consultation with any specified judicial authority. When Section 220 of the Government of India Act, 1935 came up for discussion before the House of Commons in order to ascertain whether the appointments of High Court Judges was subjected to political pressure or not, a question was raised in the following way:
The Crown must, of course, have nominations made to it Will those nominations be made by the Ministers, or withy be put forward by the Governor acting in his discretion?
994. The above question was replied by the Solicitor-General of His Majesty’s Government thus:
I do not think there is anything to feller the Secretary of State in making inquiries from the Governor-General, the Governor or anybody he thinks proper. I think it is a perfectly unfettered duly.
(See Parliamentary Debates — Indian Affairs. Commons. 1934-35, Vol. II Col. 2683).
In the ordinary course, it is estimate to assume that there must have been always consultation with the Chief Justice of the High Court concerned or with some others who were familiar with judicial matters whenever an appointment of a Judge to a High Court was made.
995. Article 193(1) of the Draft Constitution tatted that every Judge of a High Court was to be appointed by the President by a warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court of that State. In the Memorandum containing the views of the Judires of the Federal Court and of the Chief Justices representing all the Provincial High Courts prepared by the Conference of the Judges of the Federal Court and the Chief Justices of the several High Courts have in March. 1948 on the question of appointment of judges of the High Court, it was represented to the Drafting Committee as follows:
The Chief justice should send his recommendation in that behalf directly to the President. After consultation with the Governor the President should make the appointment, with the concurrence of the Chief Justice of India This procedure would obviate the need for the Chief Justice of the High Court discussing the matter with the Premier and his Home Minister and “justifying” his recommendations before them. It would also ensure the recommendation of the Chief Justice of the High ‘Court being always placed before the appointing au throaty, namely, the. President, The necessity for obtaining the “concurren(SIC) of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear in the matter. It needs hardly to be pointed out. in this connection that under the system of responsible Government envisaged by the proposed Constitution. the President who is to make the appointment will be the constitutional head of the executive guided by the advice of the Council of Ministers who will of necessity be drawn from the political party for the time being in power, and there may thus be some risk of political and party considerations influencing the appointment of the highest judicial officers in the country which, under the existing Constitution, has so far remained on the whole free from such influences, the Governor-General and the Governors not being elected nor owing their appointment to political parties in this country. It is therefore suggested that Article 193(1) may be worded in the following or other suitable manner.
Every judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India….
(empnasis added) We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the President Both are officers of. the. highest, responsibility and so far no case of such, refusal has arisen although a convention now exists that such appointment should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. If per ‘chance such a situation were ever to arise it could ‘of course be’ met by the President making a different propesal, and no express provision-need, it serns to us be made in that behalf”.
996. Ultimately Article 217(1) which provided for the appointment of High Court Judges was enacted in the following form:
217. (1) Ever Judge of a High Court shall be applined. by the President by warrant under his hand. and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and….
997. It may be noted that the three different words ‘recommendation’, consultation’ and ‘concurrence’ used in the proposal of the Conference of the Federal Court judges and Chief Justices of High Courts were not adopted by the Constituent Assembly but only the word ‘consultation’ was used in respect of all the three functionaries referred to in Article 217(1).
998. In Biswanath Khemka v. King Emperor 1945 FCR 99 : AIR 1945 FC 67. the effect of Section 256 of the Government of India Article 1935 which provided that no recommendation should be made for the grant of magisterial powers to, or the withdrawal of any magisterial powers from any person save after consultation with the District Magistrate of the District in which he was working or with the Chief Presidency Magistrate, as the case might be was considered by the Federal Court, The Federal Court held that the procedure of consultation prescribed in that section was directory and not mandatory and non-compliance with that would not render an appointment otherwise regularly and validly made ineffective Or inoperative. The Court felt that any other view would lead to general inconvenience and injustice to persona who had no control over those entrusted with the duty of making recommendations for the grant of magisterial powers. It is noteworthy that the above view was taken by the Federal Court notwithstanding the fact that the words in the section were very emphatic and of a prohibitory character. In State of Uttar Pradesh v. Manbodhan Lal Srivastava the provisions of Article 320(3)(c) of the Constitution were held by this Court to be directory and that they did not confer any right on a public servant. It was further held that the absence of consultation or any irregularity in consultation with the Public Service Commission by the Government before imposing a penalty on him at the end of a disciplin any enquiry and non-compliance with Article 320(3)(c) did not vitiate any such punishment, particularly when due enquiry had been held in accordance with Article 311 of the Constitution and no de-feet in such enquiry had been pointed out. In reaching that conclusion, the Court depended upon the statement is Crawford on ‘Statutory Construction’ which was to the following effect:
The question as to whether a statute is mandatory or directory depends upon the Intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from that phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other….
999. The words prescribing the consultation machinery in Article 217(1) of the Constitution have to be construed in the context of the broad purposes and the general scheme of that provision; its history, its object, and the result which it seeks to achieve, it is equally necessary that the Court while construing a constitutional provision should bear in mind that it is a part of the organic law of the country and not just an ordinary piece of legislation. A High Court is the highest judicial authority in State and is the court of the last resort for the majority of cases. Along with the Supreme Court at the apex, the High Courts have to play the role of protectors of the rights and liberties of the people and should, therefore, be manned by independent and efficient Judges, Realising the importance of the High Court in a democratic country with a federal form of Government, the Constitution states that the Judges should be appointed after following the consultative machinery provided in Article 217(1). A citizen of India who has for at least ten years held a judicial office in the territory of India is eligible to be appointed as a Judge of a High Court. A citizen of India who has for at least ten years been an advocate of a High Court or of two or more High Courts in succession is also qualified for appointment as a Judge of a High Court Article 217 is designed to select the best, known for their high character and unquestionable integrity from among the large number of qualified persons. Consequently the appointment of Judges of High Courts is not made by calling for applications or holding examinations because the really deserving persons would not make applications. The range of selection is. therefore, practically limited by the personal or acquired knowledge of the Chief Justice of the High Court concerned about, the advocates or Judicial Officers. In that process it may be that many deserving advocates escape notice and consideration. An advocate who is thus left out of consideration cannot make a grievance of it before a court of law and claim that his case should be considered for such appointment The paramount public importance attached to the post prevents institution of such action by a member of the Bar. From the nature of the provisions contained in Article 217(1) of the Constitution, it is also dear that any appointment made without following the procedure of consultation with the authorities mentioned therein, which appears to me to be mandatory, would not be a valid one.
1000. It is. however, contended on behalf of some of the petitioners and also on behalf of Shri S.N. Kumar that on a true construction of Article 217(1), the opinion expressed by the Chief Justice of India should be treated as final and binding on the President, having regard to the position of primacy assigned to the Chief Justice of India by the Constitution regarding matters connected with the Indian 1ud-ciary. It is also submitted that the Council of Ministers can have no voice in matters of appointment of Judges. Both these contentions are repudiated by the Central Government.
1001. The question is whether Article 217(1) treats the opinion of any of the functionaries who have to be consulted thereunder and in particular of the Chief Justice of India as final and binding on the President. The Constitution has used different words signifying varying degrees of compulsive or binding character of the opinion of one constitutional dignitary or authority on the other wherever there is need for two or more of them participating in any decision making process under the Constitution. They are, for example, ‘shall act according to such opinion’ (Article 103 and Article 192), ‘consent’ (Article 127(1), Article 128, Article 224A and Article 348(2)). ‘advice’ (Article 74 and Article 150), ‘concurrence1 (Article 370(1)(b)(ii)), ‘approval’ (Article 130, Article 148(2) Article 229(2)). ‘recommended by’ (Article 233(2)) and ‘after consultation with’ or ‘in consultation with’ or be consulted’ (Article 124(2) Article 127(1). Article 146(1). Article 217(1). Article 217(3) Article 222, Article 229, Article 233(1), Article 320(3), Article 341(1), Article 342(1) and Article 370(1)(b)(1) 1. It is significant that the words ‘after consultation with’ in Article 150 were substituted by the words on the advice of by the Constitution (Forty-fourth Amendment) Act, 1978 since the Parliament wanted, as can be seen from the Notes on Clauses in the relevant Bill which later on became the Constitution (Forty-fourth Amendment) Act, the President to prescribe the form of the accounts of the Union and of the States with the concurrence of and not merely in consultation with the Comptroller and Auditor General of India.
1002. Prom the scheme of the constitutional provisions, it appears that each of the three functionaries mentioned in Article 217(1) of the Constitution who have to be consulted before a Judge of a High Court is appointed has a distinct and separate role to play. The Chief Justice of the High Court is the most competent person to evaluate the merit and efficiency of a person recommended for the judgeship. The Governor is the proper authority who through the executive agency available to him may be able to report about the local POSItion of the person proposed, his character and integrity, his affiliations and the like, which have a considerable bearing on the working of the person proposed for appointment as a Judge. The Chief Justice of India is brought into the picture to prevent any vagaries on the part of the Chief Justice of the High Court who may be moved on occasions by petty considerations such as communalism and favouritism or who may even be capricious in proposing names of persons for judge-ship. The Chief Justice of India will naturally be able to assess the qualities of persons proposed having in view the standard of efficiency of Judges in all the High Courts in India and also to prevent unsatisfactory appointment being made on the basis of faulty recommendations made by the Chief Justices of High Courts. The position of the Chief Justice of India under Article 217(1) however is not that of an appellate authority or that of the highest administrative authority having the power to overrule the opinion of any other authority. From the specific roles attributed to each of them as explained above, which may to some extent overlapping also, it cannot be said that the Chief Justice of India has .been given any petition of primacy amongst the three persons who have to be consulted under Article 217(1) of the Constitution. There are no express words conveying that meaning. The president has to take into consideration the opinions of all of them and he should not accept the opinion of any of them only on the sole principle of primacy. He has to take a decision on the question of appointment of Judges of the High Courts on the basis of all relevant materials before him.
1003. Article 217(1) confers the power of appointment on the president, who ordinarily has to act on the advice of the Council of Ministers under Article 74(1) of the Constitution. Now we have to examine whether there is any compelling reason to hold that the Council of Ministers would have no voice in the matter of appointment of a High Court Judge and the opinion of the Chief Justice of India would be binding on the president. It is necessary to refer here to certain articles of the Constitution. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall in the exercise of his functions, act in accordance with such advice. The proviso to that clause provides 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, it is thus clear that the only means of counteracting any advice tendered to him by his Council of Minis-ten available to the President where he feels that the advice should not be straightway acted upon is to remit it to the Council of Ministers for reconsideration. If after such reconsideration the Council of Ministers tenders its advice the President has to act in accordance with such advice. The advice thus tendered is binding on the President. A comparison of Article 74(1) with Article 163(1) which also requires a Governor to act on the advice of his Council of Ministers shows that the Governor may in certain matters which are within Ma discretionary power act independently of his Couned of Ministers, There is no such exception expressly made in Article 74(1) specifically excluding any matter from its scope. Article 103 of the Constitution is another provision which has to be noticed here. It confers power on the President to decide the question whether a Member of Parliament has Incurred any disqualification mentioned in Article 102(1) of the Constitution. It reads:
103. (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
1004. Clause (2) of Article 103 lays dawn the only method in accordance with which the President can decide a question arising under Clause (1) thereof. It requires him to refer the .said question to the Election Commission for its opinion and to decide the question according to its opinion. Article 74(1) therefore is excluded from operation by necessary implication. A question of similar nature arising in respect of a member of the State Legislature has to be decided under Article 102 by the Governor concerned in accordance with the opinion of the Election Commission. Article 163(1) therefore becomes inapplicable by necessary intendment to such a case. It is thus seen that wherever the opinion of another authority alone is binding on the President or a Governor, as the case may be the Constitution uses appropriate words conveying such meaning.
1005. Under Article 217(3) of the Constitution which provides for the determination of the age of a Judge of a High Court, the President has to decide the age of a High Court Judge after consultation with the Chief Justice of India and this Court has observed in Union of India v. Jyoti Prakash Mitter (1071) 3 SCR 483: AIR 1071 SC 1093 that the President cannot in deciding the case under Article 217(3) and on the advice of his Ministers. Here again Article 74(1) of the Constitution gets excluded by necessary implication. But that case stands on an entirely different footing. The function of the President under Article 217(3) is a judicial function and that makes all the difference. This Court observed in the said case at pages 504-505 (of SCR): (at pp. 1105, 1106) thus:
It is necessary to observe that the President in whose name all executive functions of the Union are performed is by Article 217(3) invested with judicial power of great significance which has bearing on the independence of the Judges of the higher Courts. The President is by Article 74 of the Constitution the constitutional head who acts on the advice of the Council of Ministers in the exercise of his functions. Having regard to the very grave consequences resulting from even the initiation of an enquiry relating to the age of a Judge, our Constitution makers have thought it necessary to invest the power in the President. In the exercise of this power if democratic institutions are to take root in our country, even the slightest suspicion of appearance of misuse of that power should be avoided. Otherwise independence of the judiciary is likely to be gravely imperilled. We recommend that even in the matter of serving notice and asking for representation from Judge of the High Court where a question as to his age is raised, the President’s Secretariat should ordinarily be the channel, that the President should have consultation with the Chief Justice of India as required by the Constitution and that there must be no interposition of any other body or authority, in the consultation between the President and the Chief Justice of India. Again we are of the view that normally an opportunity for an oral hearing should be given to the Judge whose age is in question, and the question should be decided by the President on consideration of such materials as may be placed by the Judge concerned and the evidence against him after the same is disclosed to him. The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. But this Court will not sit in appeal over the judgment of the President, nor will the Courts determine the weight which should be attached (SIC) the evidence. Appreciation of evidence is entirely left to the president and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion.
1006. The power of appointment of a Judge of a High Court is an executive power and the analogy of Article 217(3) is, therefore, inappropriate.
1007. The power of the Governor with regard to matters connected with appointment or dismissal of judicial officers was construed by this Court giving the final voice regarding such appointment or dismissal only to the Governor under Article 233 of the Constitution notwithstanding the vesting o! control over the subordinate judiciary in the High Court under Article 235 in the case of the State of West Bengal v. Nripendra Nath Bagchi . In that case Hidayatullah. J. (as he then was) reconciled and interpreted Article 233, Article 234, Article 235 and Article 311 thus:
That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying. That does not impinge upon the control of the High Court. It only means that the High Court cannot appoint or dismiss or remove District Judges. In the same way the High Court cannot use the special jurisdiction conferred by the two provisos. The High Court cannot decide that it is not reasonably practicable to give a District Judge an opportunity of showing cause or that in the interest of the security of the State it is not expedient to give such an opportunity. This the Governor alone can decide. That certain powers are to be exercised by the Governor and not by the High Court does not necessarily take away throwers from the High Courts. The provisos can be given their full effect without giving rise to other implications. It is obvious that if a case arose for the exercise of the special powers under the two provisos, the High Court must leave the matter to the Governor. In this connection we may incidentally add that we have no doubt that in exercising these special powers in relation to inquiries against District Judges, the Governor will always have regard to the opinion of the High Court in the matter. This will be so whoever be the inquiring authority in the State. But this does not lead to the further conclusion that the High Court must not hold the enquiry any more than that the Governor should personally hold the enquiry.
There is, therefore, nothing in Article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if Article 235 vested such a power in it. In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction.
1008. Again in Chandramouleshwar Prasad v. Patna High Court the power of appointment of District Judges exercisable by the Governor in consultation with the High Court arose for consideration. This Court recognised in that case that the power to appoint District Judges was vested with Governor but that such power could be exercised only after a full and effective consultation with the High Court. It held that if the process of consultation was defective the appointment would become invalid. The Court did not, however go to the extent of saying that any opinion expressed by the High Court was binding on the Governor.
1009. In Samsher Singh v. State of Punjab which is a judgment of a bench of seven learned Judges of this Court, Chief Justice Ray observed at page 843 (of SCR) : (at p. 2209 of AIR) thus:
For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment dismissal is brought against the Union or the State and not against the President or the Governor.
1010. In the same case Krishna Iyer, J. with whom Bhagwati, J. agreed in his concurring judgment has summed up the true legal position under Article 74 and Article 163 of the Constitution at page 875 (of SCR) : (at p. 2230 of AIR) thus:
We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well unexceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House: (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (e) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid Retting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.
1011. The above decision was delivered by this Court after a careful consideration of all aspects of constitutional law bearing on the point in the light of Article 234 of the Constitution which entrusts the power of appointment of persons other than District Judges to the Judicial Service of a State to the Governor. In principle an appointment under Article 217(1) cannot be different from an appointment under Article 234, 1012. The binding nature of an opinion expressed by an authority who has to be consulted before making an appointment of a Judge was disposed of by Chandrachud, C. J. in Re. The Special Courts Bill with the following words “… the process of consultation has its own limitations and they are quite well-known. The obligation to consult may not necessarily act as a check on an executive….” Later on the learned Chief Justice again observed at pages 550-551 (of SCR): (at p. 518 of AIR):
Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay, one may say that as a matter of convention, it is in the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. Buhe right of an accused to life and liberty cannot be made to depend upon pious expressions of hope howsoever past experience may justify them. The assurance that conventions are seldom broken is a poor consolation to an accused whose life and honour are at stake. Indeed, one must look at the matter not so much from the point of view of the Chief justice of India, nor indeed from the point of view of the Government, as from the point of view of the accused and the expectations and sensitivities of the society.
1013. The substance of these observations is that the opinion expressed by the Chief Justice of India who has to be consulted before hand would not be binding as such on the executive. That was the reason for insisting upon in that case that the Government should appoint a Judge of the Special Court with the concurrence of the Chief Justice of India as otherwise there would have been no need for such insistence.
1014. The thesis that the Constitution prohibits the participation of the Executive in the appointment of Judges of superior courts and that the opinion of the Chief Justice of India alone should be binding on the President in such matters totally fails when we consider the question of appointment of the Chief Justice of India. Article 124(2) of the Constitution provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and sea] after consultation with such of the Judges of the Supreme Court and of the High Courts-in the States as the president may deem necessary for the purpose and that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. From the above clause of Article 124, it is obvious that when the appointment is to the post of the Chief Justice of India, it is not obligatory on the part of the President to consult any specified functionary. But he has to consult such of the Judges of the Supreme Court each one of whom may himself be an aspirant to the post and such other Judges of the High Courts he may consider necessary. In this situation, it is quite evident that the opinion of any one of the Judges who may be consulted cannot be treated as binding on the President. The power appointment rests with the President who has no doubt to take the decision on the advice given by the Council of Ministers after making the necessary consultation. When the ‘primacy of Judicial opinion’ doctrine thus falls in the case of the appointment of the Chief Justice of India, it would not be appropriate to hold that it prevails in the case of appointments of other Judges of the Supreme Court and the Judges of the High Courts.
1015. Under Article 217(1) of the Constitution the President should, therefore, while making an appointment of a High Court Judge act on the advice of his Council of Ministers having due regard to the opinions expressed by the functionaries mentioned therein after a full and effective consultation. There is no scope for holding that either the Council of Ministers cannot advice the President on this matter or that the opinion of the Chief Justice of India is binding on the President although such opinion should be given due respect and regard 1016. As a part of this very contention it is urged that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment, It is difficult to hold that merely because the power of appointment is with the executive, the independence of the judiciary would become impaired. The true principle is that after such appointment the executive should have no scope to interfere with the work of a Judge.
1017. In this connection out of curiosity I have looked into some of the books dealing with the modes of appointment of Judges in other countries. The methods by which, Judges are chosen in the different countries of the world may be broadly classified accordin a to Prof. J.W. Garner into three types — (1) election by the legislature, (2) election by the people and (3) appointment by the executive either absolutely or from a list of nominees presented, by the courts or with the concurrence of an executive council or the upper chamber of the legislature/ Choice by the legislature was a favorite method of selection in the American States for sometime but this system has. been abandoned in all the States except Rhode Island, Vermont, South Carolina and Virginia. In Switzerland the Judges of the federal tribunal are chosen by the legislative assembly of the federation. Election of Judges by the people was first introduced in France in 1790. With the advent of Napolean this system was abolished as it had become discredited by them. In thirty eight of the States in the U.S.A. the method of popular election of Judges is the rule. In nearly all countries other than the United States of America, the Judges are appointed by the executive and even in the United states it is the method followed for the appointment of federal Judges and in six States for appointment of State Judges. In Belgium the Judges of the Court of Cassation are appointed from two lists of nominees each containing twice as many names as there the vacancies to be filled, one presented by the Court itself and another by the Senate, in Prance it is the custom when a vacancy occurs on the Bench it is for the President of the Court and the State’s Attorney to propose the names of several persons to the Minister of Justice for his consideration. Generally he appoints one of the persons so recommended but sometimes for political reasons he prefers to follow the recommendations of a deputy, who may be an influential member of the Minister’s party.
1018. In England the nominations to all vacancies ‘among the superior Judges are made either by the prime Minister or by the Lord Chancellor. ‘The Prime Minister nominates the Law Lords, the Lords Justices of Appeal, the Load Chief Justice, the Master of the Rolls and the President of the Probate Divorce and Admiralty Division. It is commonly assumed that the Prime Minister is guided by the Lord Chancellor. The ordinary Judges of the High Court often called puisne Judges are nominated by the Lord Chancellor. The Lord Chancellor is responsible for the lesser judicial appointments.’ (See R.M. Jackson. The Machinery of Justice in England 1960 Edition p. 232).
1019. In his letter written by the end of 1951 of Morse Erskine, a member of the California Bar Lord Jewitt who the Lord Chancellor in the Labour Government till October 1951. however, stated:
I think that I can fairly say that we have established a tradition in which “politics” and “influence” (in the appointment of judges) are now completely disregarded. The Lord Chancellor selects the man whom he believes to be the best able to fill the position. In my own case I had an unusually large number of appointments, and I can only recall appointing two men who were members of my own party.
You must remember these facts which help in establishing the tradition. The Inns of Courts are completely independent of any governmental control. The Lord Chancellor has always been a barrister, and must therefore be a member of one of the Inns. He is in dose touch with all that goes on in, his Inn of Court. How should I have felt if I had made a lot of unworthy appointments, when I noticed the cold looks that I should have received when next I went to lunch at the Inn.
Secondly, in practice, the Lord Chancellor would always consult with the Head of the Division to which he was called upon to appoint a Judge. If I had to appoint a Judge to the Queen’s Bench Division, I should, in practice, always consult with the Chief Justice; if to the diverse Division, with the President, if to the Chancery Division, with the senior fridge In all my many appointments I never in fact made one without the approbation of such a per-son. When it came to the Court of Appeal, I should consult the Master of the Rolls as to who was the most suitable person….
(See “The Life of the Law’ Ed. by John Honnold (1964) p. 270).
1020. Sir Albert Napier, the permanent secretary of the office of Lord Chancellor in a paper prepared in about the year 1963 said much the same thing as Lord Jowitt as follows:
The Lord Chancellor is the most appropriate Minister to advice on appointments and promotions for the very reason. that he is a Judge and is qualified for that position by actual practice at the Bar. He knows by experience as an advocase, the nature and degree of the knowledge and Idad character and temperament which go to make the best Judges. When he sits he hears eminent Barristers arguing before him. He is in almost daily touch as a Law Lord and a Bencher of his Inn. with the Lords, of Appeal and other Judges and members of the Bar. The Bench of an Inn is a society where all are equal, and talk is free, and so far as precedence is neoessary, it goes by date of election and not by rank. In such a society a bad appointment could not escape criticism, and if it were ever suggested to a Lord Chancellor that he should appoint or promote the wrong man for the wrong motive, he would know not only where his duty lay but that if he were to accede he would lose the respect of the whole profession. (See ‘The Life of the Law’ Ed. by John Honnold (1964) p. 270).
1021. The foregoing gives a fairly reliable picture of the English system of appointments of Judges. It is thus seen that in England the . Judges are appointed by the Executive. ‘Nevertheless, the judiciary is substantially insulated by virtue of rules of strict law, constitutional conventions, political practice and professional tradition from political influence.’ (Vide Halsbury’s Laws of England, Fourth Edition. Vol. 1 para 5).
1022. In Australia the Justices of the High Court and of the other courts created by the Parliament are appointed by the Governor-General in Council (See Section 72(1) of the Commonwealth of Australia Constitution Act. 1900). The appointment of federal Judges is a cabinet matter which is formally ratified by the Executive Council. It is stated that the practice is that the Attorney-General would recommend to Cabinet persons for appointment though it is the Cabinet which will make the final decision.
1023. In Canada Judges of superior courts are appointed by the. Governor-General (Vide Section 96 of the British North America Article 1867).
1024. In. Japan, the Emperor appoints the Chief Judge of the Supreme Court as designated by the Cabinet and Judges, other than the Chief Justice are appointed by the Cabinet, 1025. In India we have adopted the procedure contained in Article 217(1) of the Constitution for the appointment of Judges of the High Courts. We do need anything intrinsically wrong in this method The process of consultation prescribed by Article 217(1) acts as a sufficient safeguard against the appointment of undesirable persona as Judges of the High Courts. Our experience has been that the independence of the judiciary has not in any way been impaired by reason of the president appointing Judges on the advice of his Council of Ministers after following the process of consultation prescribed in Article 217(1). This method appears to have been adopted so that the appointments of Judges may have ultimately the sanction of the people whom the Council of Ministers represent in a parliamentary form of Government. In that way only the Judges may be called people’s Judges. If the appointments of Judges are to be made on the basis of the recommendations of Judges only then they will be Judges’ Judges and such appointments may not fit into the scheme of popular democracy.
1026. As a corollary to the above contention, it is urged that an advocate or a member of the subordinate judiciary who is recommended by the Chief Justice of a High Court acquires a right to be appointed if his name is approved by the Chief Justice of India also and one of the learned Counsel appearing in these cases said that such a person would be entitled to request the Court to issue a writ of mandamus compelling the President to appoint him as a Judge of the High Court. The soundness of this argument depends upon the process of appointment itself. Article 217 of the Constitution does not say in terms that the proposal for appointment of a person as a Judge should be initiated by the Chief Justice of the High Court. Let us assume for purposes of argument that he may initiate the proposal recommending the name of a person who according to him is qualified for the post. The Governor may or may not agree with the proposal. The Chief Justice of India may or may not agree with the proposal. Ultimately the appointing authority has to take a decision on the question. Under the scheme ft Article 217 the power to appoint a Judge of a High Court is vested in the President. While he is bound to consult the authorities mentioned therein and take into consideration their opinions, he is not bound heir opinions. Ordinarily one does not expect the President to make an appointment by ignoring all the adverse opinions expressed by the functionaries mentioned in Article 217. If there are conflicting opinions the President has to weigh them after giving due consideration to each of them and take a decision on the question. In any event it. is difficult to hold that an advocate or a member of the Subordinate Judiciary whose name is approved by the Chief Justice of a High Court and the Chief Justice of India gets a vested right to be appointed as a Judge of a High Court. In fact he has no Justifiable right at all. If for any reason he is not appointed he cannot move the Court to appoint him as a Judge of the High Court. The position of an additional Judge who is currently holding office and who is not reappointed stands on a slightly different footing and his case will be considered at the appropriate place.
PART VI 1027. The evolution of the system of appointing additional Judges in the High Courts for such period not exceeding two years as the President may specify needs to be examined now. Appointment of a Judge who is a member of the superior judiciary for such short period appears to be peculiar to our country. Such practice is not prevailing in the United Kingdom. Even in India we do not have Judges either in the Subordinate Judiciary or in the Supreme Court whose tenure is so short. We may have additional courts in the Subordinate Judiciary but they are manned by Judges belonging to regular judicial cadre, whose tenure is the same as the tenure of others in the cadre.
1028. Under Section 4 of the High Courts Act or the Charter Act, 1861 (24 & 25 Vict. e. 104) it was provided that all the Judges of the High Courts established under that Act held their offices during Her Majesty’s pleasure provided that it was lawful for any Judge of a High Court to resign such office of Judge. Section 7 of that Act, however, provided that upon the. happening of a vacancy in the office of Chief Justice and during any absence of a Chief Justice, the Governor-General in Council or Governor in Council as the case might be could appoint of the Judges of the High Court concerned to perform the duties of Chief Justice of that Court until some person was appointed to the office of the Chief Justice (this provision corresponds to Article 223 of the Constitution;. It also provided that upon the happening of a vacancy in the office of any other Judge of a High Court and during any absence of any such judge or on the appointment of any such Judge to act as Chief Justice it was lawful to the Governor-General in Council or Governor in Council as the case might be to appoint a person with such qualifications as were required in persons to be appointed to the High Court to act as Judge of that court and the person so appointed was authorised to sit and to perform the duties of a Judge of that Court until some person was appointed to the office of the Judge of that Court and had entered on the discharge of the duties of such office or until the absent Judge had returned from such absence or until the Governor-General in Council or Governor in Council as aforesaid saw cause to cancel the appointment of such acting Judge. (This provision corresponds to Article 224(2) of the Constitution. It may be noted that the president cannot cancel the appointment of an acting Judge under Article 224(2)).
1029. In the High Courts Act or the Charter Act, 1861, there was no provision for appointment of an additional Judge of a High Court with a restricted tenure as it is in Article 224(1) of the Constitution.
1030. Section 105 of the Government of India Article 1915 contained almost the same provisions which were found in Section 7 of the High Courts Act or the Charter Act. 1861 providing for the appointment of acting Chief Justice and acting Judges. But Section 101 of the 1915 Act however made provision for the appointment of additional Judges. Sub-section (2) of Section 101 stated that each High Court should consist of a Chief Justice and as many other Judges as His Majesty might think to appoint. Clause (i) of the proviso to that sub-section authorised the Governor-General -in-Council to appoint persons to a-t as Additional Judges for such period not exceeding two years. Such provision for the appointment of additional Judges of High Courts appear have been made by this Act for the first time.
1031. Section 220 of the Government of India Article 1935 as it was originally enacted provided that every High Court was to consist of a Chief Justice and such other Judges as His Majesty might from time to time consider it necessary to appoint. It further provided that the Judges so appointed together with any additional Judges appointed by the Governor-General in accordance with law could at no time exceed in number such maximum number as His Majesty in Council might fix in relation to the High Court concerned. Under the Government of India Act, 1935, every Judge of a High Court held his office until he attained the age of sixty years provided that he would cease to be a Judge of the High Court if any of the events mentioned in the proviso to Section 220(2) happened earlier. Section 220 of the Government of India Article 1935 underwent subsequently slight modifications which are of no materiality for the present purpose. Section 222 of the Government of India Act, 1935 which provided for the appointment of temporary and additional Judges of a High Court read immediately prior to the commencement of the Constitution as follows:
222. (1) If the office of Chief Justice of a High Court becomes vacant, or if any such Chief Justice is by reason of absence, or for any other reason, unable to perform the duties of Ms office, those duties shall, until some person appointed by His Majesty to the vacant office has entered on the duties thereof or until the Chief Justice has resumed his duties, as the case may be. be performed by such one of the other Judges of the court as the Governor-General may in his discretion think fit to appoint for the purpose.
(2) If the office of any other judge of a High Court becomes vacant, or if any such judge is appointed to Act temporarily as a Chief Justice, or is by reason of absence, or for any other reason, unable to perform the duties of his office, the Governor-General may in his discretion appoint a person duly qualified for appointment as a judge to act as a judge of that Court, and the person so appointed shall, unless the Governor-General in his discretion thinks fit to revoke his appointment, beamed to be a judge pf that Court until some person appointed by His Majesty to the vacant office has entered on the duties thereof or until the permanent judge has resumed his duties.
(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 the 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.
1032. Article 166 of the Draft prepared by the Constitutional Adviser more or less adopted the language of Section 222 of the Government of India Act, 1635 with some modifications. The Drafting Committee, however, redrafted Article 166 of the Draft Constitution prepared by the Constitutional Adviser by splitting it into two articles i.e. Articles 198 and 169. The redrafted Articles 198 and 190 of the Draft Constitution read as follows:
198. (1) When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the court as the President may appoint for the purpose.
(2) (a) When the office of any other 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.
(b) The person appointed shall, while so acting, be deemed to be a judge of the Court.
(c) Nothing contained in this clause shall prevent the President from revoking any appointment made under this clause.
199. 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 President that the number of the judges of the court should be for the time being increased, the President may. subject to the foregoing provisions of this Chapter with respect to the 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.
1033. The Drafting Committee also introduced one more Article i. e. Article 200 providing for the attendance of retired Judges at sittings of High Courts which conformed to the practice in the United Kingdom and the United States of America. That Article read:
200. Notwithstanding anything contained in this Chapter, the Chief Justice of a High Court may at any time, subject to the provisions Of this Article request any person who has held the office of a judge of that court to sit and act as a judge of the court, and every such person so requested shall, while so sitting and acting, have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a judge of that 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 court unless he consents so to do.
1034. At the conference of the Federal Court Judges and Chief Justices of the High Courts which met in March, 1948, it was recommended that Article 198(2)(c) of the Draft Constitution which empowered the President to revoke the appointment of an acting’ judge appointed under Article 198(2)(a) should be omitted.
1035. The Drafting Committee received at this juncture a number of representations to delete the Article pro-viding for the appointment of additional Judges and acting Judges. The comments of Tej Bahadur Sapru on the practice of additional Judges or acting Judges resuming practice after a short stay on the Bench were telling. He said:
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 Indian 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 preeminence 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 a 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.
(B. Shiva Rao : ‘The Framing of India’s Constitution’ Vol. IV pp. 172-173).
1036. In October, 1948, the Drafting Committee decided to drop both Article 198(2) and Article 199 providing for the appointment of acting and additional Judges. It was of the view that it was ‘possible to discontinue the system of appointment of temporary and additional Judges in High Courts altogether by increasing, if necessary, the total number of permanent Judges o! such courts’. On June 7, 1949 after hearing the plea of Dr. B.R. Ambedkar ‘that all Judges of the High Court shall have to be permanent’, the Constituent Assembly adopted the recommendation of the Drafting Committee to delete Articles 198(2) and 199 of the Draft Constitution providing for the appointment of acting and additional judges in High Courts. Accordingly the Drafting Committee deleted reference to appointment of acting and additional Judges altogether in the revised Draft Constitution submitted to the Constituent Assembly on November 3, 1949 but retained only those provisions relating to appointment of acting Chief Justice and attendance of retired Judges at sittings of High Courts. In the Constitution as it was enacted finally by the Constituent Assembly there were provisions for appointment of Chief Justice, Judges, acting Chief Justices and attendance of retired Judges at the sittings of the High Court. (Vide Article 217. Article 223 and Article 224). There was no provision for the appointment of acting or additional Judges. Since it was felt that the working of Article 224 as it was originally enacted which provided for the attendance of retired Judges at sittings of High Courts was not satisfactory and that there way need to introduce provisions for appointment of acting and additional Judges as it obtained in Sub-sections (2) and (3) of Section 222 of the Government of India Act, 1935, by the Constitution (Seventh Amendment Act, 1956, Article 224 was substituted by the new Article 224 which read thus:
224. (1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified person, to be additional judges of the Court for such period not exceeding two years as he may specify.
(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting judge of a High Court shall hold office after attaining the age of sixty years.
1037. Article 217(1) was simultaneously amended in order to make the procedure of the appointment of permanent Judges applicable to additional and acting Judges too. After amendment. Article 217(1) reads:
217. (1) Every Judge of a High Court shall be appointed by the President by warrant under this hand and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office in the case of an additional or acting Judge as provided in Article 224 and in any other case until he attains the age of sixty years….
1038. The original Article 224 which was replaced by the new Article 224 was again reintroduced as Article 224A by the Constitution (Fifteenth Amendment) Act. 1963 again providing for the attendance of retired Judges at sittings of High Courts. Simultaneously Article 271(1) was amended substituting “sixty two years” in the place of “sixty years” in it. Clause (3) of Article 224 was also amended by substituting “sixty two years” in the place of “sixty years”. This completes the history of Article 224 of the Constitution.
1039. What is the true meaning of Article 224(1)? It empowers the President to appoint duly qualified persons to be additional Judges, if it appears to him by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein that the number of Judges of that Court should for the time being be increased. The two occasions when an additional Judge can be appointed are those mentioned in Article 224(1) of the Constitution, namely, (i) a temporary increase in its business or (ii) accumulation of arrears of work in the High Court concerned. Article 224(1) is not, therefore, intended for meeting a situation where the work of the High Court is gradually on the increase requiring the appointment of more number of permanent Judges. The reasons for the increase in the work of the High Courts according to the Fourteenth Report of the Law Commission were:
The problem of arrears in the High Courts must in our opinion be viewed against the very large increase in the work of these courts in recent years, particularly during the period following the Constitution. Two main causes of this increase need mention. Firstly, the growing volume of ordinary litigation following the economic and industrial development of the country, has considerably added to the normal work of all the Courts. We append a Table (Table 1) showing the extent of the increase under various heads. Secondly, there has been an expansion of the High Courts’ special jurisdiction under a variety of fiscal enactments like the Income-tax and Sales Tax Act and other special laws. The fact of such expansion was noticed by the High Courts Arrears Committee as far back as 1949. A very recent example of the conferment of the special jurisdiction on the High Courts will be found in the Representation of the People Act by which the High Court is empowered to hear appeals from the decisions of Election Tribunal.
The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in the High Courts. Applications for the enforcement of fundamental rights, applications seeking to restrain the usurpation of jurisdiction by administrative bodies and applications or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts. It has to be observed that many laws have come in for challenge in the Courts on the ground of their inconsistency with the Constitution. The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts. Their decisions have not only taken longer time but have led not infrequently to references to Full Benches which necessarily divert the available judge-power from what may be called normal judicial work. As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very considerably. This increase of work and its specially difficult and novel character can well be regarded as an important cause of the accumulation of old cases.
(Vide paragraphs 2 and 3 in Chapter 6 of Vol. I of the Fourteenth Report of the Law Commission).
1040. These observations were made in 1958. There are more reasons now for the increase in the work of the High Courts.
1041. The Law Commission in paragraphs 54 and 57 of Chap. 6 in Volume I of its Fourteenth Report recommended thus:
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 some 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 is 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 increase in the work of the High Courts.
57. 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 and 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. Parjpassu 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.
1042. The practice that grew in the High Courts was, however, different. Article 224(1) was treated as the gateway through which almost every Judge had to pass before being made permanent It is indeed disturbing to notice that some Judges before they were made permanent had functioned as additional Judges for nearly five years.
1043. Article 217(1) of the Constitution lays down the procedure to be followed in making the appointment of a Judge of a High Court. The President can appoint a High Court Judge after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Article 217(1) as it was originally enacted referred to the appointment of permanent Judges only as there was no provision in the Constitution then to the appointment of additional or acting Judges. When the new Article 224 of the Constitution was substituted in the place of the original Article 224 by the Constitution (Seventh Amendment) Act, 1956 providing for the appointment of additional and acting Judges. Article 217(1) also was amended requiring the appointment of additional and acting Judges also in the same manner, the only distinction maintained between the permanent Judges and the additional and acting Judges being the one relating to their tenure. A permanent Judge is entitled to be in office till he attains the age of sixty two years whereas the tenure of an additional or acting Judge is as specified by the President under Article 224(1) or Article 224(2) of the Constitution as the case may be. It is, however, to be noted that the Constitution does not prescribe any difference in the mode of appointment of a permanent Judge or of an additional or an acting Judge. All of them should satisfy the same tests as to their fitness to be appointed as Judges irrespective of the fact whether they are appointed as permanent Judges or as additional or acting Judges. We shall hereafter confine our attention to the appointment of permanent Judges and additional Judges only.
1044. Article 219 of the Constitution reads.
216. 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.
1045. It is well known that with the increase of the population and the number of laws and with the changes brought about in the economic, social and political life of the people, litigation in all courts has been continuously increasing. Naturally the number of cases filed in the High Courts which happen to be the highest courts in the case of a large number of matters have gone on growing. From the statements filed oh behalf of the Central Government along with the affidavit dated Aug. 29. 1981 of Shri T.N. Chaturvedi, Secretary (Justice), Government of India, the following facts emerge:
As on As on As on 31-12-1978 31-12-1970 31-12-1980 (a) The total number of main cases pending. 6.13,799 6,17,239 6,78,951 (b) Average disposal of main cases per Judge per year during the years 1978, 1979 and 1960. 860 Sanctioned Actual strength strength (c) The sanctioned strength of permanent Judges in all the High Courts as on 18-3-1981. 360 (d) The actual strength of permanent Judges in all the High Courts as on 18-3-1981. 277 (e) The sanctioned strength of additional Judges in all the High Courts as on 18-3-1981. 97 (f) The actual strength of addit- ional Judges in all the High Courts’ as on 18-3-1981. 43 _________ _________ 405 320 _________ _________ 1046. Hence on March 18. 1981 in alt there were 320 Judges (perrnanent and additional) in all the High Courts. At the average rate of 860 main cases per year per Judge, 320 Judges can dispose of about 2,75,200 eases per year. To dispose of the appears of cases as on 31-12-1980 they heed approximately four years since many of them are bound to be heavy Division Bench matters which consume a lot of time of them it mer be noted that 2,59,627 cases were mohan two years old as on 31-12-1980. The fresh institutions in all the High Courts are also on the increase. Fresn cases instituted in all the High Courts were 4,85,880, 530,614 and 5,55.719 respectively in the years 1978, 1979 and 1980. If the total average disposal of all the existing Judges per year is only 2,75,200 cases then twice the number of existing Judges would be needed even to dispose of the new cases instituted every year having regard to the institutions in the year 1980, let alone the backlog of nearly 7,00,000 of cases. It is thus clear that the number of Judges in the High Courts, both permanent and additional is wholly inadequate to cope up with the situation which Has arisen more on account of delay in filling up existing vacancies and on account of not increasing the strength of Judges of the High Courts to the requisite number from time to time. There appear to be some discrepancies in the statistics furnished in these cases. But it is admitted by the Government that they need at least 150 more additional Judges in addition to the sanctioned strength of 308 permanent Judges and 67 additional Judges to clear off the arrears in two years.
1047. Article 216 of the Constitution requires the President to appoint necessary number of Judges in each High Court. The w6rd ‘necessary’ in Article 216 is a crucial one. It imposes a duty on the President to review the strength of Judges in each High Court from time to time and to increase the number of Judges as an when it is necessary. No steps appear to have been taken to do so properly and that is the reason why we have reached these staggering arrears. In the present situation, it appears, there should be at least 600 permanent Judges to fight the problem of arrears. If in any given High Court the arrears come down, then fresh appointments in that High Court may not be made. But steps “have to be taken to appoint immediately at least 200 more Judges after making all the existing additional Judges permanent. In this state of affairs, it is difficult to understand as to why Judges are being appointed even now as additional Judges only for a period of two years or for lesser periods. When it is not dispend that a Judge appoint ender Article 224(1) of the Constitution is not a Judge on probation, what is the advantage of appointing additional Judges when there is need to appoint more permanent Judges? Surely there is no financial gain to the Government as the expenditure involved is almost the same whether a Judge is an additional Judge or a permanent Judge. On the other hand, the appointment of additional Judges even where permanent Judges are needed leads to two important disadvantages. First, the periodic processing of the papers relating to the renewal of the term of an additional Judge consumes a lot of time of the high functionaries who have to be consulted under Article 217(1). Secondly, an additional Judge concerned will not be able to deal with the matters as independently as a permanent Judge can. Because the conduct of an additional Judge would become subject to scrutiny by the Chief Justice of the High Court, the Governor, the Chief Justice of India and the President in connection with his reappointment just when his tenure specified under Article 224(1) is about to come to a close, it is natural that he would not be able to deal with the matters placed before him without fear of incurring the displeasure of any one of them. We have to bear in mind that the State and the Central Governments are the biggest litigants in every High Court and orders passed by an additional Judge are sure to displease them in one way or the other. It is no doubt true that an additional Judge takes the oath of office to deal with the matters without fear or favour, and affection ill-will, but we should remember that he is after all a human being. If an advocate who is at the age of about 45 years, is appointed as an additional Judge for two years, what should he do if at the end of two years he is dropped on the ground that he is not fit for being continued as a Judge ? Having burnt his boats at the Bar, should he make fresh efforts to re-establish himself in the Bar ? Will not his position be made more difficult if he is sent back with a label that he was not found fit to be continued as a Judge ? Similarly in the case of a District Judge who is promoted as a High Court Judge. should he go back as a District Judge at the end of the tenure fixed under Article 224(1)? Probably having in view all these difficulties at the time when the Constitution was enacted, no provision was made for appointing additional Judges. It was no doubt introduced in 1956 to meet emergencies arising out of sudden increase in arrears of cases. Article 224(1) was never intended for appointing almost every Judge first as an additional Judge and then as a permanent Judge. A perusal of the list of Judges of the High Courts maintained by the Government shows that not less than 4/5ths of the Judges have been initially appointed as additional Judges and then as permanent Judges. Only 1/5th of them are appointed as permanent Judges initially. This may be due to the existence of vacancies in the permanent strength when they were appointed as Judges. The sanctiond strength of permanent Judges, however, at no time represented the true position as it is found that always the permanent strength fell short of the requisite number. This is not a happy position at all but this is not all Judges whose tenure is not assured as in the case of permanent Judges but whose continuance in office after the specified period is subject to the will of any other authority generally do not inspire confidence in the litigant public also. The decision of this Court in Krishan Gopal v. Prakash Chandra supports this statement. That was a case where the appellant had questioned the jurisdiction of a retired Judge of the Madhya pradesh High Court who had been requested to function as Judge under Article 224A of the Constitution to try an election petition. This Court negatived that contention of the appellant holding that a retired Judge functioning under Article 223A had all the powers and jurisdiction of a sitting Judge. This Court also negatived another contention of the appellant which had been urged in support of the apppeal. The appeal should have, therefore, been dismissed. The operative part of the judgment, however, was entirely different. It reads at page 215(of SCR): (at p. 216 of AIR) thus:
The two legal contentions which have been advanced on behalf of the appellant in our opinion, arp not well founded, and we have no hesitation to repel them. All the same, looking to the special facts and circumstances of this case, we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned judge of the High Court who may be assigned for the purpose by the Chief Justice of that Court. It seems indeed desirable that election petitions should ordinarily, if possible, be en-trusted for trial to a permanent judge of the High Court, even though we find that additional or acting judge or those requested under Article 224A of the Constitution to sit and act as judges of the High Court, if assigned for the purpose by the Chief Justice, are legally competent to hear those matters. We therefore, set aside the order dated Aug. 10, 1973. The election petition filed by the appellant shall now be heard by a permanent judge who may be assigned for the purpose by the learned Chief Justice. The case may, therefore, be placed before the learned Chief Justice for necessary order’s. The appeal is accepted accordingly. The parties in the circumstances shall bear their own costs of this Court and in the High Court (Emphasis added) 1048. What does this decision mean? Additional or acting Judges appointed under Article 224(1) and (2) or retired Judges requested under Article 224A of the Constitution are looked at with suspicion even by this Court. Why? The reason is obvious. This Court felt that cases like election petitions which had political overtones should not be entrusted to additional Judges or acting Judges whose tenure was dependent upon the pleasure of the Government which had the power to withhold its consent to the fresh appointments of the Judges concerned to be made at the end of the period specified under Article 224. Is this not sufficient to hold that by constantly resorting to Article 224(1) where it could not be done, the Government has created a second class of Judges in the High Courts even though as we are aware their integrity, character and erudition are beyond question? The answer has to be in the affinative.
1049. The appointment of a retired Judge whose tenure was at the pleasure of the Government to try criminal cases was found to be violative of Article 21 of the Constitution by Chandrachud, C. J-in In re. The Special Courts Bill, 1978’s case (supra). In that connection, the learned Chief Justice observed at pages 549-550 (of SCR) (at p. 517 of AIR) thus:
The second infirmity from which the procedural part of the Bill suffers is that by Clause 7, Special Courts are to be presided over either by a sitting Judge of a High Court or by a person who has held office as Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India. The provision for the appointment of a sitting High Court Judge as a Judge of the Special Court is open to no exception. In so far as the alternate source is concerned, we entertain the highest respect for retired Judges of High Courts and we are anxious that nothing said by us in our judgment should be construed as casting any aspersion on them as a class. Some of them have distinguished themselves as lawyers once again, some as members of administrative tribunals, and many of them are in demand in important walks of life. Unquestionably they occupy a position of honour and respect in society. But one cannot shut one’s eyes to the constitutional position that whereas by Article 217, a sitting Judge of a High Court enjoys security of tenure until he attains a particular age, the retired Judge will hold Ms office as a Judge of the Special Court during the pleasure of the Government. The pleasure doctrine is subversive of judicial independence.
A retired Judge presiding over a Special Court, who displays strength and independence may be frowned upon by the Government and there is nothing to prevent it from terminating his appointment as and when it likes. It is said on behalf of the Government that if the appointment has to be made in consultation with the Chief Justice of India, the termination of the appointment will also require similar consultation. We are not impressed by that submission. But. granting that the argument is valid, the process of consultation has its own limitations and they are quite well-known. The obligation to consult may not necessarily act as a check on an executive which is determined to remove an inconvenient incumbent. We are, therefore, of the opinion that Clause 7 of the Bill violates Article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court, merely in consultation with the Chief Justice of India.
1050. This again supports the view that the present practice of appointing almost all the High Court Judges in initially under Article 224(1) and later on as permanent Judges is not conducive I to the independence of judiciary.
1051. It is important to bear in mind that the independence of the judiciary is one of the central values on which our Constitution is based. No other constitutional agency is shielded as are the superior courts in our country with so many built-in safeguards. The judges can, if they choose to, be guided by the doctrine of conscience only while discharging their duties. They are not expected to be under any kind of external pressure. They are circumscrib ed by ‘expectations of neutrality and impartiality and by the traditions of the legal profession which is always keeping a watchful eye on every action of a Judge. In all countries where the rule of law prevails and the power to adjudicate upon disputes between a man and a man, a man and the State, a State and a State, and a State and the center, is entrusted to a judicial body, it is natural that such body should be assigned a status free from capricious or whimsical interference from outside and the judges who constitute it should be granted a security of tenure that lifts them above the fear of acting against their conscience.
1052. Lord Chief Justice Sir Edward Coke is remembered with gratitude by all who cherish the independence of the judiciary as an inviolable part of a democratic Government. That when all the other judges basely succumbed to the mandate of a sovereign who wished to introduce despotism under the forms of judicial procedure. Chief Justice Coke did his duty at the sacrifice of his office’. The extract from 12 Coke, 63 which is found at pages 271 and 272 of the The Lives of The Chief Justices of England’ by J.L. Campbell, Vol. I (1849) shows the courage with which Coke, C. J. resisted the attempts of King James I to interfere with the judicial proceedings. Archbishop Bancroft suggested that in order to curb the independence of Lord Coke the King himself should commence to decide whatever cause he pleased in his own person. Accordingly the King summoned all the Judges before him and his Council to know what they had to say against the said proposal. Coke, C.J. said:
By the law of England, the King in his own person cannot adjudge any case, either criminal, as treason, felony, Or betwixt party and party concerning his inheritance or goods; but these matters ought to be determined in some court of justice….
Hearing this, King James asked:
My Lords, I always thought, and by my soul I have often heard the boast, that your English law was founded upon reason. If that be so, why have not I and others reason as well as you the Judges?
Coke, C.J. replied:
True it is, please your Majesty, that God has endowed your Majesty with excellent science as well as great gifts of nature; but Your Majesty will allow me to say, with all reverence, that you are not learned in the laws of this your realm of England, and I crave leave to remind Your Majesty that causes which concern the life or inheritance, or goods or fortunes, of your subjects are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before a man can attain to the cognizance of it. The law is the golden met-wand and measure to try the causes of your Majesty’s subjects, and it is by the law that Your Majesty is protected in safety and peace.
1053. The foregoing demonstrates the true role of a Judge in a country where rule of law prevails, 1054. Speaking on the Judge’s Remuneration Bill in the House of Commons in March, 1954 Sir Winston Churchill, the then Prime Minister of England observed in the course of his speech thus:
The principle of the complete independence of the Judiciary from the Executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world. It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule. The only subordination which a judge knows in his judicial capacity is that which he owes to the existing body of legal doctrine enunciated in years past by his brethren on the bench, past and present, and upon the laws passed by Parliament which have received the Royal Assent, The judge has not only to do justice between man and man. He also–and this is one of his most important functions considered incomprehensible in some large parts of the world–has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law, and to adjudicate upon the legality of the exercise by the Executive of its powers. The relations between the Judiciary and the Legislature are also exceptional and privileged. Parliament has deliberately maintained the judges in a special position, not only by charging their salaries to the Consolidated Fund so that they do not fall within the annual scrutiny of Parliament, but also by eschewing any claim to criticise a judge’s conduct in his judicial capacity except on a specific Motion for an Address to the Crown for the judge’s removal. That has worked, as far as one can see, without any adverse comment as long as any of us can remember.
Parliament has a vital interest in the efficiency and the integrity of the bench because Parliament and the Judiciary are interdependent and, from different angles, they exercise and enforce their control upon the Executive. Parliament decides what the law shall be and the judges decide what, in fact. Parliament has made it. The labours of Parliament in enacting the law depend for their effectiveness very largely on the fact that there is behind Parliament an independent judiciary applying and enforcing the law with high integrity and a great measure of commonsense and knowledge of daily life, and with high professional skill, and applying it in conformity with the intentions of Parliament. Perhaps only those who have led the life of a judge can know the lonely responsibility which rests upon him. In criminal cases, and in some civil cases, he may have the assistance of a jury, but it is on his shoulders that even in these cases the heaviest burden lies. In other cases in which the honour and fortune of citizens are at stake, he has the sole responsibility of decision, and a heavy one it must be.
The service rendered by judges demands the highest qualities of learnings, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct. (Parliamentary Debates–Commons (1953-54) Vol. 525 at p, 1062).
1055. Moving the very same Bill in the House of Lords the Marquess of Salisbury described the high esteem in which Parliament regarded the judiciary thus:
But even Parliament has put Judges in a very special position. It has taken the precaution, as we all know, of charging their salaries on the Consolidated Fund, so that they are not subject to the annual scrutiny of Parliament; it has also eschewed the right to criticise Judges in their judicial capacity. Parliament, which represents the British people, the whole electorate of the country, has throughout history been at special pains to protect the independence of the Judiciary. This, I should have thought, was both natural and right. After all, the legislation that rules our lives is, in fact, the joint creation of Parliament and the Bench; Parliament decides what the law ought to be, and the Bench decides what an fact it is. As I see it the work of Parliament largely depends for its effectiveness on the fact that both Parliament itself and the individual citizens of the country know there is behind it the Judiciary, which not only applies and enforces the law, but interprets it, where necessary, with high integrity and vast professional skill. I imagine that there can be no profession where professional skill based on long experience is more necessary than in the case of the Judiciary.
(Parliamentary Debates–Lords (1953-54) Vol. 186 at p. 1019).
1056. The foregoing shows the importance of the independence of the Judiciary in our body-Politic.
1057. The next point which requires to be examined is whether an additional Judge who is appointed for a specified term and, who is not reap-pointed after the expiry of the said term can complain before a court of law about his non-appointment. In other words whether such an additional Judge has any judicial remedy at all if he is aggrieved by the Government not appointing him as additional Judge for a further term or as a permanent Judge is the question which has to be considered here. Ordinarily wherever there is a right there should be a remedy, otherwise the right would be without meaning. On a fair construction of Article 224(1) of the Constitution which enables the President to appoint an additional Judge for a period not exceeding two years and of Article 217(1) of the Constitution which limits the tenure of an Additional Judge appointed to the period specified under Article 224(1), it is not possible to make a declaration that an additional Judge should be deemed to have been appointed as a permanent Judge On the ground that when his appointment was made under Article 224(1) it was necessary for the President to appoint a permanent Judge in view of the quantum of work pending in the High Court concerned and not an additional Judge The warrant of appointment has to be construed in accordance with the unequivocal language in which it is couched and nothing more can be read into it. The Constitution does not confer any right upon an additional Judge to claim, as of right, that he should be appointed again either as a permanent Judge or as an additional Judge. There is no such enforceable right. a court of law has no power to give effect to any right not recognised by law. It is also not the function of a court of justice to enforce or give effect to moral obligations which do not carry with them legal or equitable rights. It seems to be a very formidable proposition indeed to say that any court has a right to enforce what may seem to it to be just, apart from the Constitution and the laws.
1058. As an aid to the construction of the relevant Articles of the Constitution and in particular Article 217, and Article 224 of the Constitution, it is urged, that the British constitutional convention regarding the tenure of Judges should be adopted. Elaborating this contention, it is urged that in England there are no Judges who may be equated with additional or acting Judges. “All the superior Judges other than the Lord Chancellor hold office during food behaviour subject to a power of removal by His Majesty on an address presented to His Majesty by both Houses of Parliament.” This has been the accepted legal position since the Act of Settlement 1700 and it is so formulated with the object of securing the independence of the judiciary. By a constitutional convention the procedure lor removal of a Judge by the presentation of an address has been evolved. Since the independence of the judiciary is an integral part of the scheme of the Indian Constitution it is argued that whatever constitutional conventions are prevalent in England whose system we have adopted in creating an independent judiciary free from executive interference should be followed while interpreting the words of Article 217 and Article 224 of the Constitution. It is argued that when once a Judge is appointed to the High Court under Article 224(1) of the Constitution as an additional Judge by following the procedure of consultation prescribed in Article 217, he should either be appointed as a permanent Judge if a vacancy arises before the end of his tenure fixed pursuant to Article 224(1) which cannot exceed a period of two years or reappoint-ed as an additional Judge before the end of that period if the arrears of work in the Court to which he is appointed is such that there is a need to have an additional Judge for a further period. It is urged that when the occasion to appoint such additional Judge as a permanent Judge or as an additional Judge, as the case may be, arises even though consultation with the functionaries specified in Article 217 of the Constitution should again be followed, the consultation on that occasion shoutt be limited to the existence of a vacancy Of a permanent Judge or the existence of arrears, as the case may be, and not to any other question which may be relevant at the time of the initial appointment. In other words, the argument is that the consultation on the second occasion cannot” relate to the capacity, integrity, behaviour etc. of the additional Judge and any other view, according to the petitioners, would be opposed to the spirit of the constitutional convention which should be followed in such a case as otherwise the whole process would be vitiated on account of the scope it gives for executive interference. Alternatively, it;s urged that since almost all the additional Judges appointed after 1958 have been later on absorbed as permanent Judges, it should be held that a constitutional convention to appoint every additional Judge as a permanent Judge has come into existence and that such convention should be enforced by courts.
1059. About the applicability of the principle of judicial independence embodied in the provisions relating to the tenure of judges in the Act of Settlement, 1700, reference may be made here to Terrell v. Secretary of State for the Colonies (1953) 2 QB 482 in which a similar contention was urged in support of the case of the claimant therein, In 1930. the claimant, then in his 49th year was offered an appointment as a puisne Judge of the Supreme Court in Malaya. By a letter written on behalf of the Secretary of State, the claimant was informed that the qualifying terms for a pension was seven years and that the compulsory retiring age in the case of a Judge was 62, and the claimant accepted the appointment on those terms. In 1942, while the claimant was on leave in Australia, Malaya was occupied by the enemy and the Letters Patent appointing the claimant, of which there was no copy and those relating to other Judges, were lost or destroyed. On April 7, 1942, the claimant was informed that the Secretary of State could not justify retaining him now that his post was necessarily in abeyance and there was no alternative but to award him pension on abolition of his office and the claimant’s appointment, accordingly, ended on July 7, 1942, 17 months before his 62nd birthday. On the question whether the claimant was liable in law to be required to retire before the age of 62, it was contended that the principle of judicial independence embodied in the Act of Settlement, 1700, was to be regarded as part of the law of the Straits Settlements, and that therefore the claimant held office during good behaviour and could not be removed; alternatively, that if he had been appointed during pleasure, the correspondence between the claimant and the Secretary of State constituted a contract enforceable against the Crown that the Crown would employ him until he attained the age of 62. It was held by Lord Goddard, C. J. that the provisions of the Act of Settlement relating to the tenure of office of Judges of the Supreme Court in England did not apply to the Straits Settlements or to any other colony; it was for the Crown by exercise of the prerogative or Parliament by statute to set up courts in an acquired territory, and the conditions under which Judges of those courts held office depended upon the terms on which the Crown or Parliament established them. Secondly that it was clear from a consideration of the Straits Settlements Act, 1866, Royal Letters Patent of 1911 which instructed the Governor that he might appoint Judges to hold office during His Majesty’s pleasure, and the Royal Warrants relating to the courts in the Straits Settlements that Judges held office during the Royal pleasure; accordingly, the claimant having been appointed by Letters Patent issued pursuant to a Royal Warrant which following the terms of the Letters Patent of 1911, held office during the Royal pleasure. Thirdly, that it was a rule of law that once it was established that the Crown had the right to dismiss at pleasure, that right could not be taken away by any contractual arrangement made by an executive officer or department of State; a Judge appointed during pleasure was in no way (in a) different position from the point of view of dismissal from that of any other person In the Service of the Crown: having been appointed to hold office during pleasure no correspondence which took place before or after the claimant’s ap-gointment could affect the terms of appointment; accordingly, the termination of the appointment by the Crown was justifiable in law. It is thus seen that the English court did not extend the benefit of the Act of Settlement, 1700, to a Judge appointed in a British colony. It is more difficult to extend the benefit of that Act to Judges functioning in an independent country like India governed by its own Constitution, even though the same pattern of administration of justice is continued even now as it was in the British India.
1060. The nature of constitutional conventions, understandings and practices, according to A. v. Dicey “make of a body, not of laws, but of constitutional or political ethics.” They are not enforced or recognised by the courts. Freeman writes in his ‘Growth of the English Constitution (1872)’ that when an Englishman speaks of the conduct of a public man being constitutional or unconstitutional, he means something wholly different from what he means by conduct being legal or illegal’. Constitutional conventions in England are those which mainly govern the exercise of the royal prerogative. ‘The right to dissolve or to convoke Parliament, to make peace or war, to make new peers, to dismiss a minister or to appoint his successor, even though vested in the Crown is always regulated in accordance with the wishes of the ministry. A ministry which is out-voted on any vital question in the House of Commons is bound to retire from office is an important constitutional understanding which is invariably obeyed. The aim of these precepts is to secure that Parliament or the Cabinet shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the State–the majority of the electors or (to use popular though not quite accurate language) the nation.’ A convention is a rule of constitutional practice which is neither enacted by Parliament as a formal legislation nor enforced by courts, yet its violation is considered to be a serious breach of constitutional morality leading to grave political consequences to those who have indulged in such violations. They are, according to O. Hood Phillips, ‘rules of political practice which are regarded as binding by those to whom they apply, but which …are not enforced by the courts or by the Houses of Parliament,’ Constitutional conventions, understandings or practices therefore constitute a source of constitutional law or binding rule of conduct though not enforced by courts. The true position may be summarised thus:
The people as a whole and Parliament itself, recognise that under the unwritten Constitution there are certain established principles which limit the scope of Parliament. It is true that the courts cannot enforce these, principles as they can under the Federal system in the United States, but this does not mean that these principles are any the less binding and effective.–Prof. A. L. Goodhart, 1061. The conventions are evolved over a long period of political experience and are capable of regulating the operation of political power and are largely relied on particularly in those countries where there are no written Constitutions. They, however, vary from country to country in the Commonwealth. In India we have incorporated some of the conventions in the Constitution itself which has established a Parliamentary form of Government. Articles 74, 75, 77, 85 and 117 contain some of the British constitutional conventions in a modified form. Apart from those conventions which are incorporated in the Constitution, there may be some conventions which are followed by those in office out of polltical necessity. The latter however are not capable of enforcement in courts. The courts are not concerned with the ‘constitutional practices’ which are outside the Constitution. It is, therefore, difficult to make a declaration on the basis of any constitutional convention not found in the Constitution that an additional Judge who was appointed after following the same procedure prescribed for appointment of a permanent Judge should be deemed to have been appointed as a permanent Judge because the circumstances warranted the appointment of a permanent Judge at the time of his appointment, contrary to the express and unequivocal language of the warrant of his appointment.
1062. I must confess before proceeding further that the above argument appeared to be very attractive at one stage but on closer scrutiny it had to be rejected. In doing so I am influenced in no small measure by the following observations made in the dissenting opinion of Justice Holmes in Northern Securities Co. v. United States (1903) 193 U.S. 197, 400, 401 : 48 L Ed. 679, 726, Justice Holmes 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 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 bend.
1063. But the question is whether an additional Judge can apply to the Court to direct the Government to consider his case for such reappointment having regard to the situation in which he is placed and the circumstances surrounding his case. This has presented some unseal difficulty in answering it. A rule of practice should, according to some legal philosophers who are principally concerned with what the law ought to be, be treated as binding if it is fair and operates in a fair society and if it involves mutual benefits to the participants, so that the party who receives or expects to receive benefits, must in his turn be willing to render benefits according to the practice, because such practice gives rise to expectations, which when violated would result in harm to one or the other. These philosophical reasons may appeal to the sense of morality but while interpreting the Constitution, it has to be seen whether there is any room for concluding that an enforceable right has come into existence as a consequence of such practice.
1064. Prof. P.S. Atiyah, who has tried to analyse the nature of promissory obligations in the light of the theories of ‘promising’ associated with the natural lawyers, the utilitarians and a number of other legal philosophers in his book entitled ‘Promises, Morals and Law (1981), Oxford, observes at pages 141-142 thus:
Some philosophers have recognised that the binding force of promises may vary in a similar sort of way, but the implications of this have not (I think) been properly grasped. At the lowest, recognition of these differing degrees of binding ness must involve acceptance that pure expectations are not generally thought deserving of a nigh degree of protection and in some cases are not thought worthy of protection at all.
1065. If this is the position in the case of laws relating to promises of private individuals, the position in the case of an appointment under the Constitution would be weaker still unless there is any provision in the Constitution which expressly or by necessary intendment binds the authority concerned to act in a particular way.
1066. When the Chief Justice of a High Court feels that a member of the Bar should be invited to accept the post of a Judge of the High Court, after obtaining the consent of such advocate, he recommends that his case may be considered for appointment as a permanent or as an additional Judge depending on the vacancy which has to be filled up by such appointment. It is stated that in some High Courts including the Delhi High Court an undertaking would be taken from the advocate concerned when his name is recommended for the post of an Additional Judge that he would accept the post of a permanent Judge if offered before the expiry of the term of appointment as additional Judge. Even though such practice of taking an undertaking is not shown to be prevailing in all the High Courts, it is seen that a suggestion had been made by K.N. Wanchoo, Chief Justice of India in 1967 that such an undertaking should be taken. K.N. Wanchoo, C.J. recorded a note on June 29, 1967 as follows:
When a member of the Bar is appointed Additional Judge, it must be with a view to making him permanent in the course. If that is not possible, additional judgeship should not be offered to a member of the Bar. I agree therefore that an undertaking should be taken from the members of the Bar that they will accept a permanent judgeship when offered to them in the course….
1067. As stated elsewhere the. provision for appointment of additional Judges was included in the Constitution by the Constitution (Seventh Amendment) Act, 1956. From that time onwards nearly 500 persons have been appointed as Judges of High Courts. About one-fifth of them were initially appointed as permanent Judges and the rest were appointed initially as additional Judges for a certain term and thereafter appointed as permanent Judges. Some of them were appointed as additional Judges twice or thrice before they were made permanent, Only a few of them were not made permanent, either because they had attained the age of retirement or they had resigned or for some other reason. The number of .persons who were not made permanent on the ground that they were found unfit when their cases for reappointment were considered appears to be almost insignificant as it may not be more than five. But at no time the action of the Government in not reappointing an additional Judge as a permanent Judge was questioned before any Court as it is now done in these cases.
1068. What is to be noticed is that in almost every High Court a few posts have been kept as sanctioned posts of additional Judges as if they were part of the total strength. The result has been that unless all the sanctioned posts of additional Judges and at least one post of a permanent Judge have fallen vacant at a given point of time any new Judge appointed on that occasion being the junior most has to be appointed as an additional Judge and later on appointed as a permanent Judge when a vacancy arises in the permanent strength after all other additional Judges senior to him have been absorbed as permanent Judges. Such a thing could not have happened before the Constitution (Seventh Amendment) Act, 1956 came into force. At that time every Judge of a High Court had to be appointed only as a permanent Judge without any need for scrutinising his case again for purposes of reappointment as additional Judge or permanent Judge.
1069. From the information made available to the Court, it appears that subject to just exceptions in almost all the High Courts if a realistic review of the present strength is made the total number of permanent Judges needed will be much more the existing number of permanent Judges and additional Judges. This must have been the position for some years past. But still instead of increasing the number of posts of permanent Judges and making appointments to them the practice of inducting a new member as an additional Judge first and making him permanent later on has been continued quite contrary to the letter and spirit of Article 216 and Article 224(1) of the Constitution. Since invariably an additional Judge has been appointed as a permanent Judge in due course except in some rare cases, (sic) member who is appointed as an additional Judge and who has not completed the age of retirement expects that he will be made permanent as and when a vacancy arises in the permanent strength and will be continued as an additional Judge by fresh appointments until such vacancy arises provided the arrears in the High Court requiring his continuance as an additional Judge persist. It cannot be said that such expectation on the part of an additional Judge is not well founded. In addition to such settled expectation on the part of the additional Judge, as the learned Attorney-General has submitted, even on the part of the Government there has always been reluctance to send back an additional Judge to the Bar after the completion of his term specified under Article 224(1) and to lose the services of a Judge with experience. These twin factors namely the expectation on the part of the additional Judge and the reluctance on the part of the Government distinguish the case of an additional Judge from the case of a new member who may be a competitor for the same post at the termination of the tenure of the additional Judge. Ordinarily the additional Judge is continued in service as a Judge or as an additional Judge unless there are any relevant circumstances which would outweigh the above mentioned factOrs. In the absence of any such cogent reasons for not appointing him again, the appointment of somebody else in his place would be an unreasonable or perverse act which entitles an additional Judge to move the Court for appropriate relief in the peculiar circumstances in which Article 224(1) is being operated till now.
1070. At this stage an allied contention urged in this connection may be disposed of. That contention is that in additional Judge cannot be dropped without giving him a reasonable opportunity of being heard in accordance with the principles of natural justice. We do not find any merit in this contention since the wide discretionary power of appointment exercisable by the President in the public interest under Article 217(1) is indicative of the absence of an obligation to act judicially. (Vide Para 65 Vol. I of Halsbury’s Laws of England (4th Edn,)). It is seen that from the language of that Article that the Constitution has evinced an intention to exclude the operation of the rule of audi alteram partem by conferring on the President unfettered discretionary power subject only to the prescribed procedure of a consultation mentioned therein. (Vide Para 74, Vol. I of ‘Halsbury’s Laws of England’ (4th Edn.)). Having regard to the high office to whi’ch appointment has to be made under Article 217(1) of the Constitution and to the association of the high dignitaries who have to be consulted before any such appointment is made the application of principles of natural justice as of right is ruled out and non-compliance with such principles would not vitiate the decision. But it may still be shown on the available material that there was no cogent reason for the decision.
1071. It is argued on behalf of the Government that there is no precedent in administrative law to such a conclusion being reached. There cannot be a precedent in England, in the United States of America and in Australia as there are no Additional Judges in those countries of the type we are having in India and in India too we do not have a precedent because no such case has come up before the Court so far. This case is indeed an extraordinary one. This Court, however, is under a duty to do complete justice when a matter comes before it. What kind of relief should be granted in such a case is governed by the facts and circumstances of the case and the legal provisions governing it. If the problem is a new one a new solution has to be evolved. A Judge who has cultivated assiduously a sense of right and wrong sometimes may even depend upon his hunch while moulding the relief to be granted in a given case. It is a part of the judging process. The following words of judge Hutcheson are illuminating indeed. He tells us:
I must premise that I speak now of the judgment or decision, the solution itself, as opposed to the apologia for that decision: the decree, as opposed to the logomachy, the effusion of the judge by which that decree is explained or excused….The judge really decides by feeling and not by judgment, by hunching and not by ratiocination, such ratiocination appearing only in the opinion. The vital motivating impulse for the decision is an intuitive sense of what is right or wrong in the particular case; and the astute judge, having so decided, enlists his every faculty and belabors his laggard mind, ot only to justify that intuition to himself, but to make it pass muster with his critics. Accordingly, he passes in review all of the rules, principles, legal categories, and concepts “which he may find useful, directly or by an analogy, so as to select from them those which in his opinion will justify his desired result. (See Jerome Frank; “Law and the Modem Mind’ (1963) p. 112).
1072. The following observations of Denning, L. J. (as he then was) in Candler v. Crane, Christmas & Co. (1951) 2 KB 164 at p. 178 though in the minority are also relevant here. He observed:
This argument about the novelty of the action does not appeal to me in the least. It has been put forward in all the great cases which have been milestones of progress in our law. and it has always, or nearly always, been rejected. If you read the great cases of Ashby v. White (1703) 2 Ld. Raym, 938, Pasley v. Freeman (1789) 3 Term Rep. 51 and Donoghue v. Stevenson (1932) AC 562, you will find that in each of them the judges were divided in opinion. On the one side there were the timorous souls who were fearful of allowing a new cause of action. On the other side there were the bold spirits who were ready to allow it if justice so required. It was fortunate for the common law that the progressive view prevailed.
1073. If a progressive view was possible in the English Common Law it should not be difficult to evolve solution in India under the Constitution to do justice within the bonds of law provided the case calls for legal redress.
1074. On the facts and in the peculiar circumstances of the case, the only thing which the Court can do here is to examine the material before it in order to ascertain whether the refusal to re-appoint the additional Judge concerned is based on any relevant grounds or not and to mould the relief on the basis of the finding on the above question by applying the relevant principles of administrative law. Any relief beyond this would be impermissible in view of the language of the relevant provisions of the Constitution. It is however made clear that even this limited enquiry is made possible only on account of the wrong application of Article 224(1) of the Constitution all these years. A similar enquiry may not be possible in the case of additional Judge to be appointed hereafter.
PART VII 1075. It is interesting to trace the history of the provision relating to the transfer of Judges from one High Court to another. The Draft Constitution of India did not contain any provision providing for such transfer. Clause (c) of the proviso to Article 193(1) of the Draft Constitution merely stated that the office of the judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or of any other High Court. When two members of the Constituent Assembly Shri R. R. Diwakar and Shri S.V. Krishnamurthy Rao moved an amendment to Clause (1) of Article 193 of the Draft Constitution for adding Clause (d) which read as “(d) every judge shall be liable to be transferred to other High Courts” it was recorded that there was no need for the amendment as Clause (c) of Article 193(1) of the Constitution provided that the office of a judge shall be vacated by his being appointed to be a judge of another High Court. Perhaps the present Article 222 of the Constitution was not in view at that stage. (See B Shiva Rao: ‘The Framing of India’s Constitution’, Vol., IV p. 165). The note made by the Drafting Committee on the proposal of the Home Ministry that a convention should be established wereby a proportion of judges in every High Court could be recruited from outside the Province stated that there was no bar to the recruitment of Judges of High Court in any Province from outside the Province or to the transfer of a judge of a High Court to another High Court and a convention might be established whereby a proportion of judges of a High Court could be recruited from outside the Province. (B. Shiva Rao; ‘The Framing of India’s Constitution’. Volume JV, p. 166). In view of the suggestions made in the course of the discussion on the Draft Constitution, the Drafting Committee incorporated in the Revised Draft, Article 222 which read as follows:
222. (1) The President may transfer a Judge from one High Court to any ether 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 allowances as may be determined, by parliament by law and until so determined such compensatory allowance as the President may by order fix.
1076. In the letter dated November 3, 1949. forwarding the Revised Draft to the President of the Constituent Assembly referring to the newly added Article 222, the Drafting Committee observed thus:
Article 222 (new): We have proposed the insertion of this new article to enable the President to transfer a judge of a High Court from one High Court to another. The present provision in the Constitution would not permit of any compensatory allowance being given to judges on such transfer. Power has accordingly been reserved to Parliament to determine by law the compensatory allowance to be paid in case they are so transferred, and, until Parliament so determine, to the president to fix by order the quantum of such allowance.
1077. It may be seen that Article 222(1) which was incorporated in the Revised Draft gave the power to the President to transfer a Judge from one High Court to another without any obligation to consult any other functionary before doing so. But on the 16th November, 1949 an amendment to that Article was adopted by the Constituent Assembly which required the President to consult the Chief Justice of India before exercising the power of transfer. Article 222(1) was finally enacted as follows:
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 within the territory of India.
1078. Clause (2) of Article 222 was adopted in the form in which it had been proposed in the Revised Draft as set out above. Consequently Article 217 was also suitably amended by introducing the word ‘transferred’ in proviso (c) to Clause (1) thereof. In defence of Article 222 and in particular of Clause (2) of that Article providing for payment of compensatory allowance to a Judge who is transferred from one High Court to another High Court, Dr. B.R. Ambedkar spoke in the Constituent Assembly before Article 222 was passed thus:
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 some kind of pecuniary allowance which would compensate him for the monetary loss that he might has 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 tp 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 cower 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 matter which is not affected by local or personal prejudices.
The only question, therefore, that remained was whether such transfer should be made so obligatory as not to involve any provision for compensation for loss incurred. We felt that that would be a severe hardship. A judge is generally appointed to the High Court from the local bar. He may have a household there. He may have a house and other things in which he will be personally interested and which form his belongings. If he is transferred from one High Court to another obviously he cannot transfer all his household. He will have to maintain a household in the original Province in which he worked and he will have to establish a new household in the new Province to which he is transferred. The Drafting Committee felt therefore justified in making provision that where such transfer is made it would be permissible for parliament to allow a personal allowance to be given to a judge so transferred. I contend that there is nothing wrong in the amendment proposed by the Drafting Committee.
(The Constituent Assembly Debates, Vol. 11 (1949) pages 580-581) 1079. But by the Constitution (Seventh Amendment) Act, 1956, the words “within the territory of India” in Clause (1) of Article 222 and the whole of Clause (2) which provided for payment of compensatory allowance to a transferred judge were omitted. By the Constitution (Fifteenth Amendment) Act, 1963, a new Clause (2) was introduced into Article 222. After this amendment. Article 222 of the Constitution reads thus:
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.
(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.
1080. This leads to the question whether under Article 222 of the Constitution, the consent of a Judge of a High Court is necessary to transfer him from one High Court to another High Court. The majority judgment of this Court in Union of India v. Sankalchand Himatlal Sheth holds that the eon-sent of a Judge for his transfer from one High Court to another High Court is not necessary. It is, however, eon-tended before us that the said interpretation of Article 222 is erroneous as it would affect adversely the independence of the judiciary. It is significant that Article 222 does not state in express terms that the consent of the Judge concerned is a pre-requisite for his transfer. In places where consent of a Judge is needed the Constitution has stated that such eon-sent should be obtained from the Judge concerned (vide proviso to Article 128 and proviso to Article 224A of the Constitution). Under Article 127(1) of the Constitution if at any time there is no quorum of the Judges of the Supreme Court available to hold or to 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 Supreme Court as an ad hoe 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 to be designated by the Chief Justice of India. Clause (2) of Article 127 makes it obligatory on the part of the High Court Judge who is so de-signated to attend the sittings of the Supreme Court in priority to other duties of his office at the time and for the period for which his attendance 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. It is significant that Article 127 does not require the consent of the Judge to be designated under Article 127(1) to be obtained before asking him to function as an hoc Judge of the Supreme Court even though it may involve the shifting of his residence during the period specified in the letter of request sent to him under Article 127(1). A Judge of a High Court may have to be shifted from one place to another when the reorganisation of the State in which the High Court is situated takes place even though such shifting may not strictly amount to a transfer under Article 222 (See U. B. Raju v. State of Gujarat and such shifting may not depend upon the willingness of the Judge concerned. It cannot be said that any transfer or shifting of a Judge without his consent would amount to a punishment and would interfere with the independence of the Judge concerned or of the judiciary. If the requirement of the consent of the Judge in question is read into Article 222 then the power conferred on the President ceases to be a power in the jurisprudential sense. A power is defined by Salmond as ability conferred on a person by the law to alter, by his own will directed to that end the rights, duties, liabilities or other legal relations either of himself or of other persons. Powers are either public or private. The former are those which are vested in a person as an agent or instrument of the functions of the State. We are not here concerned with the latter class. If Article 222 is construed as requiring the consent of a Judge to be transferred then the power of the President can be neutralised bv the Judge withholding con-sent. Such a construction would virtually confer on an unwilling Judge an immunity against the exercise of the power by the President under Article 222 even though public interest demands the transfer of the Judge. Article 222 would in that case become almost ineffective. That being so, such a construction has to be avoided.
1081. One other reason which prompts me to say so is as follows: By way of comparison we may refer here to some of the provisions of the Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo. 5. C-49) of England which appears to have been used as a model for some of the relevant provisions of the Government of India Act, 1935 and of the Constitution. Section 3 of that Act corresponds to Article 224A of the Constitution. Section 7 of that Act corresponds to Article 127 and Section 8 of that Act corresponds to Article 128. Section 4(1) of that Act provides for the establishment of three Divisions of the High Court and they are now called the Chancery Division, the King’s Bench Division (now called the Queen’s Bench Division) and the Family Divison (formally known as the Probate Divorce and Admiralty Division). Section 4(2) of that Act which provides for the attachment of a puisne Judge to one of the abovesaid three Divisions and his transfer from one Division to another reads:
4. (2) The puisne Judges of the High Court shall be attached to the several Divisions thereof by direction of the Lord Chancellor and any such Judge may with his consent be transferred by a like direction from one of the said Divisions to another:
Provided that no direction shall be given for the transfer of a puisne judge from the King’s Bench Division or from the Probate, Divorce and Admiralty Division without the concurrence of the President of that Division.
(Emphasis added) 1082. The pattern of the above section shows that if the Constitution makers intended that the transfer of a Judges from one High Court to another under Article 222 should be with his consent, they would have included necessary words in Article 222. The words corresponding to the words “with his consent” in the above said Section 4(2) are significantly absent in Article 222 of the Constitution.
1083. It is argued by Shri H.M. Seervai, learned Counsel for the petitioners in Transfer Case No. 22 of 1981 that the majority decision of this Court in Sankalchand Sheth’s case (supra) holding that the consent of the Judge concerned is not necessary for transferring him from one High Court to another High Court under Article 222 of the Constitution requires to be reconsidered for the reason that the assumption of Chandrachud, J. (as he then was) and Krishna Iyer. J. that there was no provision for transfer of Judges of High Courts in the Government of India Act, 1935 is erroneous and that every such transfer should be considered as a fresh appointment of the Judge concerned in the court to which he is transferred. It is contended that if the effect of a transfer under Article 222 is a fresh appointment, the consent of the Judge so transferred should be considered as an essential pre-requisite of every such transfer. I should say at the outset that the argument is really an ingenious one, but it does not appear to have been presented in Sankalchand Seth’s case (supra) in the form in which it is argued before us.
1084. We shall examine the above contention now urged before us in two parts–(1) Whether there was a provision for a transfer of a Judge under the Government of India Act, 1935? and (2) If, there was such a provision, whether the decision of the majority in Sankalchand Sheth’s case (supra) requires to be reconsidered?
1085. It is true that Chandrachud, J. (as he then was) and Krishna Iyer, J. have both stated in the course of their opinions that there was no provision in the Government of India Act, 1935 providing for the transfer of a Judge from one High Court to another High Court and both the learned Judges proceeded on the assumption that under that Act the induction of a Judge of one High Court in another was possible only by a fresh appointment. Even Bhagwati and Un-twalia, JJ. who constituted the minority in Sakalchand Sheth’s case (supra) proceeded on the same basis. Bhagwati, J. observed in that case at page 473: “Neither in proviso (c) nor in any other provision of the Government of India Act. 1935 was the word ‘transfer’ used and there was also no specific provision in that Act conferring power to transfer a High Court Judge.” Untwalia, J. observed in that case at page 510: “Neither in proviso (c) nor in any other section of the Government of India Act was the word “transfer” used Or such a power conferred in terms on the Governor-General.” It is, however, assert ed before us that there was a provision for transfer in the Government of India Act, 1935 for the following reason. Section 220(2) of the Government of India Act, 1935 as it was originally enacted read:
220. (2) Every judge of a High Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty years:
Provided that–
(a) a judge may by resignation ur.der his hand addressed to the Governor resign his office;
(b) a judge may be removed from his office by His Majesty by warrant under the Royal Sign Manual on the ground of misbehaviour or of infirmity of mind or body, if the Judicial Committee of the Privy Council, on reference being made to them by His Majesty, report that the judge ought on any such ground to be removed.
1086. On October 26, 1944, the British Parliament enacted the India (Miscellaneous provisions) Act, 1944 by which Clause (c) was added at the end of the proviso, to Sub-section (2) of Section 220 of the Government of India Act, 1935. Sec, 2 of the said amending Act of 1944 read:
2. Judges to vacate office on transfer.–At the end of the proviso to Sub-section (2) of section two hundred and twenty of the principal Act (which relates to the term of office of judges of High Courts) there shall be added the following paragraph:
(c) the office of a judge shall be vacated by his being appointed by His Majesty to be a judge of the Federal Court or of another High Court.
1087. Section 6 of the said amending Act of 1944 provided that the above amendment made by Section 2 thereof in the Principal Act should be deemed to have seen made therein immediately before the passing thereof and thus the newly added Clause (c) of the proviso to Section 220(2) was given retrospective effect. Then reliance is placed on the speech of Earl of Munster made on July 4, 1944 in the House of Lords in support of the Bill which later became the said amending Act, the relevant part of which read thus:
Clause 2 of the Bill -makes it dear I that if a Judge of the High Court is transferred to another High Court or to the Federal Court, he shall not retain his office of a judge of the High Court from which he was transferred. This is the only Clause which will be retrospective. I might mention that there is a similar provision in Section 10 of the Supreme Court of Judicature Act, 1925 applicable to High Court Judges in this country. (Underlining supplied). See Hansard. (Lords) Vol. 132, Col. 632 of July 4. 1944.
1088. Reliance is also placed on two other speeches made in the House of Commons on September 27, 1944 on the same Bill, the relevant parts of which are given below:
1089. The Secretary of State for India (Mr. Amery) stated:
The second clause clears up a doubt which had been expressed as to whether under the provisions of the Act a Judge transferred in India from one High Court to another or to the Supreme Court (sic) might not be considered as still holding his position in his original Court. In our Own Judicature Act, 1925, that point is made clear in Section 10. This Clause simply adopts the Indian condition to the wording of our own Judicature Act. (Underlining supplied). (See Hansard. (Commons) Vol. 493, Col. 345 of 27-9-1944).
1090. Mr. Pethick Lawrence also observed:
With respect to the Judges, I understand the proposal is merely intended to put beyond question what was certainly the intention in regard to them. That is, I understand the only part of the Bill which is retrospective. It is simply to clear up doubts…(Ibid Col, 347) 1091. The argument constructed on the basis of the above material is that Clause (c) of the proviso to Section 220(2) of the Government of India Act, 1935 provided for the transfer of Judges of one High Court to another High Court although it used the word ‘appoint’ and that is made clear by the use of the word ‘transfer’ in the marginal note of Section 2 of the amending Act of 1944 which introduced the amendment, I have carefully considered the above submission but I have to state that it requires lot of credulity to accept it in the circumstances of the case. The source of inspiration for this argument is easily traceable to the marginal note to Section 2 of the India (Miscellaneous Provisions) Act, 1944, which reads: Judge to vacate office on transfer’. The importance of a marginal note in statutory construction so far as English statutes are concerned appears to be very little as can be gathered from the following words in Craies on ‘Statute Law’ (sixth Edn.) page 197:
The side notes are not pan of the Act and I believe are not considered or amended by the legislature”. Lord Mac Naughten in the Privy Council considered it well settled that the marginal notes cannot be referred to for purposes of construction, Thakurain Balrai Kunwar v. Rae Jagatpal Singh (1904) 31 IA 132, 142 and Lord Hanworth M.R. referring to the Superannuation Act of 1859 said: “It was contended that these catchwords could be used to explain the meaning of sections upon which they appear. As explained by Baggallay LJ in Att.-Gen, v. G.E. Ry. supra, marginal notes are not part of an Act of Parliament. The Houses of parliament have nothing to do with them, and I agree with the learned Lords Justices in that case that the courts cannot look at them Nixon v. Att.-Genl. (1930) 1 Ch 566, 593.
1092. in Maxwell on ‘The Interpretation of Statutes’ (12th Edition) it is stated at pages 9-10 thus;
The notes often found printed at the side of sections in an Act. which purport to summarise the effect of the sections, have sometimes been used as an aid to construction. But the weight of the authorities is to the effect that they are no parts of the statute and so should not be considered, for they are “inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons.
1093. In ‘Statutory Interpretation’ by Sir Rupert Cross (1976 Edition), we have a very instructive passage, explaining the relative importance of certain parts of a statute, including side notes (or marginal notes). The learned author is of the view that although the long title, preamble (if any) and short title of a statute may be described as aids to the ascertainment of the intention of Parliament, crossheadings, side-notes (or marginal notes) and punctuation merely indicate the intention of the draftsman. He proceeds to observe at pages 107-106, 113-114 thus:
There is a bewildering mass of conflicting dicta on the question whether some of the above items can be treated as aids to construction at all and, when it is conceded that they may be so treated, upon their weight. This is due to a failure to distinguish between two stages in the process of interpretation at which the aids may be relevant. The first stage is that at which the judge has to decide whether he has any real doubt about the meaning of the word, phrase or passage which he is called upon to interpret. At this point it is hard to believe that he can or should have any inhibitions concerning the parts of the statute which he will read. No doubt he will begin with the section containing the word, phrase or passage in dispute. He can hardly help taking account of the punctuation and side note. If he is to fulfill his duty of reading the whole Act, when it is necessary to do so in order to determine whether there is an ambiguity, he must look at the long title, preamble (if any), short title and cross-headings. If, after this performance, the Judge is satisfied that the word, phrase or passage the meaning of which is in dispute really only has one meaning in the context, he must apply that meaning; but if he has doubts on the subject he will think again. It is at this point that the distinction between the enacting parts of a statute and the other parts becomes crucial. If the sole cause of doubt is a disparity between the otherwise clear and unambiguous words and a title, preamble, heading Or side note, the judge must disregard his doubts and apply the otherwise clear and unambiguous words. This is because there is a rule of law according to which, although the parts of the statute which do not enact anything may be consulted as a guide to parliamentary intent and hence to the meaning of the enacted word, effect must not be given to any doubts which they may raise about the meaning of that word. If, however, the judge has doubts about the meaning of the statutory provision he is considering for some such other reason as its lack of clarity or apparent pointlessness, he may take the title, preamble, heading or side note into consideration in determining how those doubts should be resolved, As we shall see, reservations have been expressed about the propriety of taking any of the above items into consideration, and it is necessary to be especially cautious when endeavouring to state the law with regard to the extent to which the short title and side notes, not to mention punctuation, may be taken into consideration, but it is submitted that the following remarks of Lord Upjohn in Director of Public Prosecutions v. Schildkamp (1971) AC 1 at p. 28 amply justify the above general account of the relevance of the items mentioned at the beginning of this section to the judicial process of interpretation. The remarks were made with special reference to cross-headings.
When the Court construing the Act is reading it through to understand it, it must read the cross-headings as well as the body of the Act and that will always be a useful pointer to the intention of Parliament in enacting the immediately following sections, whether the cross-heading is no more than a pointer or label, or is helpful in assisting to construe, or even in some cases to control, the meaning or ambit of those sections must necessarily depend on the circumstances of each case and I do not think it is possible to lay down any rules.
The matter must now be considered in slightly greater detail.
….
Side notes:
Chandler y. Director of Public Prose-Qutions. (1964 AC 763) may be cited as conclusive authority |or the proposition that side notes (frequently spoken of as “marginal notes”) cannot be Used as aids to construction in any circumstances. The defendants, members of the Committee of One Hundred, the aim of which was to further nuclear disarmament, participated in a demonstration at an airfield with the object of grounding all aircraft. They were charged with and convicted of an offence against Section 1(i) of the Official Secrets Act 1911 which punishes those who approach prohibited places for a purpose prejudicial to the safety of the State. The side note reads “penalties for spying” and it was conceded that the defendants were not spying, but their appeal to the House of Lords was dismissed on the ground that they were acting for a purpose prejudicial to the safety of the State within the meaning of Section 1(1). Lord Reid said:
In my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of it being supposed in recent times that an amendment to alter a side note could be proposed in either House of Parliament, Side notes in the original Bill are inserted by the draftsman. During the passage of the Bill through its various stages amendments to it or other reasons may make it desirable to alter a side note, in that event I have reason to believe that alteration is made by the appropriate officer of the House–no doubt in consultation with the draftsman. So sidenote cannot be enacted in the same sense as the long title or any part of the body of the Act.
In spite of its great weight, three remarks may be made with regard to this passage. In the first place what Lord Reid said would seem to be equally applicable to cross-headings, yet we have just seen that this has not prevented them from being treated in much the same way as the long title and preamble. Secondly, even if it is the case that side notes cannot be called in aid in order to resolve doubts, it can hardly be the law that they are to be disregarded by the judge when he is perusing the Act with a view to ascertaining whether he has any doubts. No judge can be expected to treat something which is before his eyes as though it was not there. In the words of Upjohn, L. J.: “While the marginal note to a section cannot control the language used in the section, it. is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind. Finally, Lord Reid’s remarks in Chandler v. Director of Public Prosecutions must be read in the light of his subsequent remarks in Director of Public Prosecutions v. Schildkamp (1971) AC 1 at p. 10:
But it may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to everything found in the printed Act. I say more realistic because in very many cases the provision before the court was never even mentioned in debate in either House, and it may be that its wording was never closely scrutinised by any member of either House. In such a case it is not very meaningful to say that the words of the Act represent the intention of Parliament but the punctuation, cross-headings and side notes do not.
1094. In Bhinka v. Charan Singh (1959) Supp 2 SCR 798 at p. 809 : ATR 1959 SC 960 at pp. 965, 986 Subba Rao, J. (as he then was) observed thus:
Maxwell on Interpretation of Statutes”, 10th Edn., gives the scope of the user of such a heading in the interpretation of 3 section thus, at p. 50:
The headings prefixed to sections or sets of sections in some modern statutes are regarded, as preambles to those sections. They cannot control the plain words of the statute but they mav explain ambiguous words.” If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt.
1095. In Indian Aluminium Company etc. v. Kerala State Electricity Board Bhagwati, J. said:
It is true the marginal note cannot afford any legitimate aid to a construction of a section, but it can certainly be relied upon as indicating the drift of the section, or, to use the word of Collins M. R. in Bushell v. Hammond (1904) 2 K.B. 56.3 “to show what the section was dealing with”.
1096. A reading of the passages and decisions referred to above leads to the view that the Court while construing a statute has to read both the marginal notes and the body of its provisions. Whether the marginal notes would be useful to interpret the provisions and if so to what extent depends upon the circumstances of each case. No settled principles applicable to all cases can be laid down in this fluctuating state of the law as to the degree of importance to be attached to a marginal note in a statute. If the relevant provisions in the body of the statute firmly point towards a construction which would conflict with the marginal note the marginal note has to yield. If there is any ambiguity in the meaning of the provisions in the body of the statute, the marginal note may be looked into as an aid to construction.
1097. The marginal note in question was not incorporated in the Government of India Act, 1935. Moreover, the marginal note differed in material respects from Clause (c) which was added to the proviso to Section 220(2) of the Government of India Act 1935 as Clause (c) referred to appointments to the Federal Court and to another High Court There could be no transfer of a High Court Judge to the Federal Court He could become a Judge of the Federal Court only on being appointed as such under Section 200(2) under a separate warrant of appointment. Even in the case of High Courts, a Judge of a High Court could become a Judge of another High Court under the Government of India Act, 1935 only by an appointment under Section 220(2) by a warrant of appointment. There was no independent provision corresponding to Article 222 of the Constitution, providing for transfer in the Government of India Act, 1935. The Earl of Munster and Mr. Amery who spoke in the British Parliament on the subject were probably influenced by the marginal note in the amending Act and if I may say so got into an error of proximity when they relied on Section 10 of the Supreme Court of Judicature (Consolidation) Act, 1925, which established the Supreme Court of Judicature in England consisting of His Majesty’s High Court of Justice and His Majesty’s Court of Appeal both of which were in the same building at the Royal Courts of Justice. Even there Section 10(2) of that Act provided that the office of any Judge of the High Court would be vacated by his being appointed as a Judge of the Court of Appeal and the same Act used ‘transferred’ in Section 4(2) thereof where it was dealing with the transfer of a Judge of the High Court from one Division to another Division. The Marginal note and the speeches relied on are. therefore, of not much use. On this slender material we cannot hold that there was a provision for transfer of a High Court Judae under the Government of India Act, 1935, I am of the view that there is no error committed by the learned Judges in stating so in Sankalchand Sheth’s case (supra) and the decision in that case is not liable to be reconsidered on the ground now urged before us.
1098. It is alternatively urged that as the Constitution has used the words ‘transfer’ and ‘appointment’ interchangeably in Article 222 and in paragraph 11(b)(iii) of the Schedule to the Constitution, the word ‘transfer’ in Article 222 should be read as equivalent to ‘appointment’ and a transfer of a Judge therefore results in a fresh appointment which requires his consent, para 11(b)(iii) of the Second Schedule to the Constitution reads thus:
11(b). “Actual service” includes —
(i) & (ii) …
(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
1099. The contention is that since a High Court Judge can become a Judge of the Supreme Court only by a fresh appointment and that in para 11(b)(iii) of the Second Schedule to the Constitution the word ‘transfer’ is used to denote such appointment, it should be held that even when a High Court Judge is transferred to another High Court he must’ be deemed to have been appointed afresh in the Court to which he is transferred and because it is a fresh appointment his consent is necessary as it is needed under Article 217(1). In support of this submission reliance is placed on another part of Maxwell on The Inter-pretation of Statutes’ (12th Edition) at page 286 where it is stated thus:
Just as the presumption that the same meaning is intended for the same expression in every part of an Act is not of much weight, so the presumption of a change of intention from a change of language–which is of no great weight in the construction of documents–seems entitled to less weight in the construction of a statute than in any other case; for the variation is sometimes to be accounted for by the draftsmen’s concern for “the graces of the style” and his wish to avoid the repeated use of the same words, sometimes by the circumstance that the Act has been compiled from different sources, and sometimes by the alterations and additions from various hands which Acts undergo in their progress through Parliament 1100. The decision in State of Bombay v. Heman Santlal Alreia AIR 1952 Bom 16) is also cited before us for our consideration in support of this contention. In that case, the High Court of Bombay has observed at pages 23-24 thus —
The argument is very attractive and receives considerable support from two different expressions used in the Constitution. It is perfectly true that the ordinary and normal canon of construction requires that when we find in a statute or in a Constitution two different expressions used, as far as possible two different meanings must be given to these expressions, because it must be assumed that the Legislature or the Constituent Assembly did not use two different expressions without intending to convey two different meanings. But instances are not unknown where two different expressions have been used to convey the same meaning.
1101. In the aforesaid Bombay case the learned Judges were concerned with the apparent difference between two expressions ‘law in force’ and ‘the existing law’ of which the latter expression was more compendious than the former and could include within its scope both the former expression ‘law in force’ which meant law actually in force and any law potentially in operation such as law which had been suspended or which had not been extended to certain territories. The two expressions found place in Article 13 and Article 372 respectively of the Constitution. On a consideration of the relevant circumstances, the Bombay High Court came to the conclusion that ‘existing law’ and ‘law in force’ had been used in the Constitution without any distinction or difference. We are not faced with any difficulty in this case of the sort with which the Bombay High Court had to deal in the above decision. The Constitution has used the word ‘appointment’ and ‘transfer” to convey two different senses, the first meaning the initial induction of a person into a post and the latter meaning the shifting of a person from one post to another equivalent post. The members of the Constituent Assembly were quite familiar with this distraction which was well known to the bureaucracy at the time when the Constitution was enacted. The following history of the legislation supports the view that the two expressions are not used in the same sense as meaning ‘appointment’ only but they mean two different concepts as stated earlier, Clause (c) of proviso to Section 220(2) of the Government of India Act, 1935 which is the earliest of the relevant clauses read as:
(c) the office of a Judge shall be vacated by his being appointed bv His Majesty to be a Judge of the Federal Court cr of another High Court.
1102. Clause (c) of the proviso to Article 193(1) of the Draft Constitution which did not contain a provision for the transfer of High Court Judges read as follows:
(c) The office of the Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or of any other High Court.
1103. In the Revised Draft Constitution which was submitted to the Constituent Assembly on Nov. 3. 1949, in which a provision for transfer had been included in Article 222. Clause (c) of the proviso to Article 217(1) which almost remained unaffected read as:
(c) The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or of any other High Court in any State specified in the First Schedule.
1104. But on November 16, 1949 the above clause was amended at the stage of the third reading of the Constitution emphasizing the difference between ‘appointed’ and ‘transferred’ and in order to bring it in accord with Article 222 which provided for transfer of High Court Judges. After the amendment it read as under:
(c) The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India (emphasis added) (See Constituent Assembly Debates, Vol. 11 P. 596).
1105. If the Constituent Assembly had thought that ‘appointed’ and ‘transferred’ were interchangeable, there would have been no need for the amendment as the provision in the Revised Draft Constitution was sufficient. But it deliberately amended the provision as stated above by distinguishing a ‘transfer’ from an ‘appointment’. If in spite of this amendment, the Constituent Assembly has allowed para. 11(b)(iii) in the Second Schedule to the Constitution to remain as it is, it only means that it thought that the word ‘transfer’ had been used therein in a broad sense meaning a physical ‘transfer’ of the Judge concerned which included both appointment to the Supreme Court and transfer to another High Court and that is clear by the use of a common expression ‘transfer’ in respect of both the events which follow it in that clause. Moreover, this argument now pressed before us runs counter to Article 222 of the Constitution which appears to be a complete Code on the topic of transfer of a High Court Judge. If transfer is a fresh appointment, Article 217(1) of the Constitution would immediately be attracted and that provision contains an entirely different procedure of consultation from what is contained in Article 222 I. therefore, do not find any merit in this contention.
1106. The next contention urged against the correctness of the majority decision in Sankalchand Sheth’s case (supra) is the one that appealed to Untwalia, J. in that case, namely, that a transferred Judge cannot become a Judge of the High Court to which he is transferred without taking a fresh oath in accordance with Article 219 of the Constitution in the form prescribed in the Third Schedule to the Constitution. The gist of the argument may be summarised thus: Article 219 provides that every person appointed to be a Judge of a High Court shall before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. The form of the oath in the case of Judges of High Court reads:
I, A. B., having been appointed Chief Justice (or a Judge) of the High Court at (or of)….Swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.
1107. It may be noted that the place where the High Court is situated or the State to which it pertains should be inserted in the blank space shown in the form of oath set out above, Clause (c) of proviso to Article 217(1) of the Constitution states that the office of a Judge of a High Court shall be vacated by his being appointed by the President to any other High Court within the territory of India. The argument is that since a Judge of a High Court has to take a fresh oath when he is appointed as a Judge of the Supreme Court he should also take a fresh oath when he is transferred to another High Court before he enters upon his duties there for the reason that he ceases to be Judge of a High Court to which he is originally appointed on being transferred and the oath taken earlier would come to an end on such transfer as the oath is with reference to the High Court concerned, (which is inserted in the blank space in the form of oath). It is argued that it is not possible for a person to function as a Judge unless the oath is operative. If a transferred Judge has therefore to take a fresh oath then it is urged that the order of transfer would become a fresh appointment for which his consent would be required by necessary implication as it is necessary in the case of a first appointment under Article 217(1). It is difficult to agree with this contention. What is the object of an oath? An oath is taken by a Judge in order to show his allegiance to the Constitution and to affirm that he will duly and faithfully discharge his duties as a Judge without fear or favour, affection or ill-will and that he will uphold the Constitution. The essential part of it is what he swears or affirms to do. The words “having been appointed Chief Justice (or a Judge) of the High Court at (or of)” in the form of oath are only descriptive of the person who takes the oath. The oath is not confined to the High Court where he enters his office. It will operate as long as he discharges judicial duties either in that High Court or in any other High Court to which he may be transferred under Article 222 of the Constitution or even when he discharges any other duty which he may be requested to do by the president as provided in para. 11(b)(i) of the Second Schedule to the Constitution. The oath binds him even after his retirement. A perusal of some of the provisions of the Constitution would establish this. Under Article 127 of the Constitution a High Court Judge can be asked to discharge the duties of Judge of a Supreme Court. Under Article 224A a retired High Court Judge can be asked to sit in the High Court where he had worked as a Judge before bis retirement or in any other High Court and decide cases. In neither of these two cases he has to take a fresh oath, even though he discharges judicial duties. It is contended that since in the first of these two cases he is not treated as a regular Supreme Court Judge but continues to be a High Court Judge and in the second case he is entitled to have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be a Judge of the High Court where he functions under Article 224A no fresh oath would be necessary. This contention overlooks the necessity for taking the oath. The necessity for the oath is that the person who discharges judicial duties in a superior court should perform those duties without fear or favour, affection or ill-will. If that is so. can we say that the effect of the oath comes to an end when he leaves the High Court which is mentioned in the form of oath taken by him or is confined to that High Court? Then it would mean that a High Court Judge who is requested under Article 127 or under Article 224A would not be bound by the oath when he discharges judicial duties pursuant to those Articles. Such a construction cannot be permitted. The oath he has taken would be operating as long as he discharges any duty arising out of or transable to his status of being a Judge of a High Court. A Judge functioning under Article 127 and Article 224A cannot be freed from the obligations flowing from the oath even though a particular High Court is mentioned in the form of oath taken by him. The position cannot be different when a Judge of a High Court is transferred under Article 222. On such transfer he may cease to be a Judge of the High Court where he was working before such transfer but he continues to be a Judge nonetheless and goes to the Court to which he is transferred as a Judge and not as a newly appointed person who is still to blossom into a Judge by taking the oath as prescribed by Article 219 of the Constitution.
1108. Incidentally we may refer to the decision of the High Court of Allahabad in Hira Singh v. Jai Singh AIR 1937 All 888 (KB) in which the question of a Judge not taking oath had arisen for consideration in a slightly different situation. In that case a preliminary objection was taken to the Constitution Of the Bench before which the case came up for hearing as the Bench consisted of Justice Uma Shankar Bajpai, who had been originally appointed as an additional Judge of that Court under the Government of India Act, 1915 and who after some extensions had been appointed as a permanent Judge on March 17, 1937 with effect from April 1, 1937. Part 3 of the Government of India Act, 1935 which came into force on April 1, 1937 provided that any Judge appointed before the commencement of that Part to any High Court would continue in office and should be deemed to have been appointed under that Part. One of the contentions, which appears to have been urged in this case, was that without taking a fresh oath as required by Section 220(4) of the Government of India Act, 1935, Bajpai, J. could not function as a Judge, That contention was negatived by the Full Bench in the following way at page 590:
All that Section 220(4) requires is that every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscr’be before the Governor or some other person appointed by him an oath according to the form prescribed. The oath is necessary before entering upon his office as a Judge. As already pointed out, Bajpai, J. entered upon his office as a Judge of this Court long ago and took the oath which was then prescribed under Clause 3 of our Letters Patent. The mere fact that he has now been made a permanent Judge does not mean that he “enters upon his office” as a Judge of this Court afresh, necessitating a fresh oath which is required for a person who enters upon his office for the first time, If this were not the correct interpretation, then the result would be that every time that an additional Judge’s term is extended, he would have to take a fresh oath. This is contrary to the established practice of this Court. It may also be pointed out that under Section 223 of the Act the powers of the Jud-ges of a High Court in relation to the administration of justice in this Court are the same as immediately before the commencement of Part 3 of this Act.
1109. This decision proceeded on the basis that an additional Judge once appointed does not change his status as a Judge even when his tenure is extended or is made permanent. We need not go to that extent in this case since we are concerned with a Judge who is transferred from one post to another equivalent post, 1110. I am of the view that no fresh oath need be taken by a Judge who is transferred before entering upon duties as a Judge in the High Court to which he is transferred since the oath already taken continues to bind him and the transfer is only traceable to the status which he had acquired after taking the oath earlier in the Court to which he was initially appointed. It is not correct to state that the effect of that oath comes to an end because he vacates his seat in the Court where he was functioning before his transfer. Since there is no necessity for a fresh oath after his transfer, even though as a matter of abundant caution the practice of taking fresh oath is prevailing now a days, it cannot be said that he is appointed afresh as a Judge in the Court to which he is transferred, 1111. There is one other ground to hold that the transfer does not result in a fresh appointment. If it is a fresh appointment in a new High Court with his consent, payment of an additional compensation under Article 222(2) of the Constitution to the Judge who becomes a Judge of that High Court under an order of transfer under Article 222(1) would become anomalous as the other Judges of that Court who are initially appointed to that Court would be getting the usual salary, allowances and other perquisites allowable in the case of a High Court Judge. It is only when a Judge is transferred in the public interest without his volition it can be said that payment under Article 222(2) would not be discriminatory as then he would be belonging to a different class. The payment under Article 222(2) can be justified only by holding that the transfer under Article 222(1) does not result in a fresh appointment in another High Court to which a Judge is transferred.
1112. If a Judge who is transferred under Article 222 of the Constitution is to be treated as having been appointed afresh in the High court to which he is transferred then he will have to be assigned a rank below all the other Judges who were working in that Court before he was transferred. It is only if it is held that he goes there as a person already appointed as a Judge though in another High Court then he can reasonably be assigned seniority over others who were appointed after he was appointed initially as a High Court Judge. Any other view would be irrational.
1113. The argument that a transfer can be made only with the consent of a Judge on personal grounds also does not appeal to me. While explaining this ground, an illustration of a Judge who on grounds of health is seeking transfer from one High Court to another was given. The illogicality of this submission becomes obvious when we consider whether there can be any justification for paying such a Judge the compensation under Article 222(2) after he is so transferred. There is no merit in this submission, 1114. Relying upon Clause (2) of Article 222 of the Constitution which provides for payment of compensatory allowance in addition to his salary to a Judge who is transferred to another High Court from the Court to which he was originally appointed it is argued that transfer is a punishment or an injury for which compensation is provided under Article 222(2) of the Constitution. It is difficult to accede to this submission. A transfer under Clause (1) of Article 222 of the Constitution could not ever have been considered to be a punishment in disguise, the transfer being in the public interest. The transfers may not be on account of any conduct of a Judge which is not relished by the transferring authority. It may be on account of the public interest such as providing another High Court with a competent Judge who is able to discharge his duties effectively in that Court. Payment oi such compensatory allowance does not imply that a transfer involves an element of punishment, It is difficult to imagine that Article 222 was enacted by the Constituent. Assembly as a measure of punishment to an erring Judge. It may be that when a Judge is transferred in the public interest, he suffers some inconvenience but such inconvenience cannot be termed as a punishment. I am sure that the Chief Justice of India and the President will duly consider all aspects before ordering such a transfer.
1115. The following observations of Chandrachud, J, (as he then was) in Sankalchand Sheth’s case (supra) fully explain the true legal position at pages 444-445 (of SCR): (at p. 2339 of AIR) thus:
Unquestionably, the fundamental principle on which these constitutional provisions and decisions rest cannot be allowed to.be violated or diluted, directly or indirectly. But then the question is Is there any need or justification, in order to uphold and protect the” independence of the judiciary for construing Article 222(1) to mean that a Judge cannot be transferred from one High Court to another without his consent? I think not. 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. The executive possesses no such power under bur Constitution and if it can be shown–though we see the difficulties In such showing that a transfer of a High Court Judge is made in a given case for an extraneous reason, the exercise of the power can appropriately be struck down as being vitiated by legal mala fides. The extraordinary power which the Constitution has conferred on the President by Article 222(1) cannot be exercised in a manner which is calculated to defeat or destroy in one stroke the object and purpose of the various provisions conceived with such care to insulate the judiciary from the influence and pressures of of the executive. The power to punish a High Court Judge, if one may so describe it, is to be found only in Article 218 read with Article 124(4) and (5) of the Constitution, under which a Judge of the High Court can he removed from his office by an order of the President passed after ah address by each House 6th Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal, on the ground of proved misbehaviour or incapacity. Thus, if the power of the President, who has to act on the advice of the Council of Ministers, to transfer 9 High Court Judge under Article 222(1) is strictly limited to cases in which the transfer becomes necessary in order to subserve public interest, in other words, If it be true that the President has no power to transfer a High Court Judge for reasons not bearing on public interest but arising out of whim, caprice or fancy of the executive or its desire to bend a Judge to its own way of thinking, there is no possibility of any interference with the independence of the judiciary if a Judge is transferred without his consent.
1116. The last sentence of the above passage is of great significance.
1117. It is clear from the above passage with which I respectfully agree, that an order of transfer made under Article 222 is liable to be struck down by the Court if it is shown that it has been made for an extraneous reason, that is, on a ground falling outside the scope of that Article. Under that Article a Judge can be transferred when such transfer subserves, public interest and the president “has no power to transfer a High Court Judge for reasons not bearing on public interest but arising out of whim, caprice, or fancy of the executive or its desire to bend a Judge to its own way of thinking”. It is also clear from the above decision that “the power to punish a High Court Judge, if one may so describe it, is to be found only in Article 218 read with Article 124(4) and (5) of the Constitution under which a Judge qf a High Court can be removed from his office by an order of the President after an address by each House of parliament.” is presented in accordance with those clauses on the ground of proved misbehaviour or incapacity. The question debated before us is whether under Article 222, it is open to the President to transfer a Judge from one High Court to another High Court on the ground of misbehaviour or incapacity and whether the said ground falls within the scope of ‘public interest’ which is the only relevant consideration on the basis of which a transfer can be made under that Article. It is argued that even though the observations made in the majority judgment which are extracted above point out that no valid transfer can take place under Article 222 On the ground of misbehaviour or incapacity of a Judge, the following passage at page 446 (of SCR): (at p. 2341 of AIR) in the same judgment suggests to the contrary, Experience shows that there are cases, though fortunately they are few and far between, in which the exigencies of administration necessitate the transfer of a Judge from one High Court to another. The factious local atmosphere sometimes demands the drafting of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favourites and non-favourites. The voice of compassion is heard depending upon who articulates it. Though transfers in such cases are pre-eminently in public interest, it will be impossible to achieve that purpose if a Judge cannot be transferred without his consent. His personal interest may lie in continuing in a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be severed to act as a reminder that “the place of justice is a hallowed place”.
1118. In Sankalchand Sheth’s case (supra) the main question for determination was whether a Judge could be transferred at all without his consent. The majority reached the conclusion that he could be transferred in public interest without his consent. The Court was not specifically concerned with the question whether such transfer could take place on a ground which could be the basis for Parliamentary proceedings for the removal of a Judge under Art, 218 read with Article 124(4) and (5) of the Constitution. Since this question has been directly raised in this case it requires to be examined more closely having regard to the scheme of the Constitutional provisions.
1119. Clause (b) of the proviso to Article 217(1) of the Constitution states that a Judge of a High Court may be removed from his office by the president in the manner provided in Clause (4) of Article 124 of the Constitution for the removal of a Judge of the Supreme Court. Article 218 of the Constitution provides that the provisions of Clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court. Clauses (4) and (5) of Article 124 read as follows:
124. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity, (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under Clause (4).
1120. Clause (5) of Art, 124 authorises the Parliament by law to regulate the procedure for the presentation of an address and for investigation and proof of the misbehaviour or incapacity of a Judge under Clause (4) thereof. In exercise of the said power Parliament has enacted the Judges (Inquiry) Act, 1968 (Act 51 of 1968) which is applicable to Judges of both the Supreme Court and High Courts. The procedure prescribed by that Act is an elaborate one.
1121. Sections 3 to 6 of the abovesaid Act lay down inter alia that the proceedings for removal of a judge can be commenced with a notice of motion for presentation of an address to the president praying for the removal of a Judge of the Supreme Court or of a High Court in the case of a notice given in the Lok Sabha, signed by not less than one hundred members of that House and in the case of a notice given in the Rajya Sabha, by not less than fifty members of that House. The next step is the consideration of the said notice by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha as the case may be who may on the basis of the material before him either admit the motion or refuse to admit it. If the notice is admitted, the Speaker or the Chairman should keep the motion pending and constitute a committee of three members of whom one should be chosen from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts and one person who in the opinion of the Speaker or the Chairman as the case may be, is a distinguished Jurist. If notices of motion are given on the same day in both the Houses, no committee can be constituted unless the motion has been admitted in both the Houses and if it is so admitted by both the Houses then the committee should be constituted jointly by the Speaker and the Chairman. The committee so constituted has to frame charge and hold an enquiry in accordance with the procedure prescribed therefor. At the conclusion of the enquiry if the committee reports that the Judge is not guilty of the charges, the motion pending in the House cannot be proceeded with. If the committee finds that the Judge against whom the enquiry is instituted is guilty of any misbehaviour or suffers from any incapacity then the motion should be taken up for consideration by the House concerned. If thereafter the motion is adopted by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting and an address is presented to the President in the prescribed manner by each House of Parliament in same session, a Judge of the Supreme Court or a High Court can be removed from office under proviso (b) to Article 217(1) of the Constitution.
1122. We are concerned here with the transfer of a Judge whose stock-in-trade if we may use this expression, is his reputation. People accept the decision of a Judge not because his decision is always correct but because it is rendered by a person known for his wisdom, integrity. character and impartiality. It is only on account of these qualities of a Judge, people have faith in the judiciary. The litigants naturally expect the presiding officer of a Court to be a virtuous person. If there is a slight rumour which would adversely affect his reputation, he ceases to command the respect of the people. Even a correct judgment given by a Judge who is transferred would be viewed with suspicion, if it is known that a judge whose character and conduct are not above reproach is liable to be transferred from one High Court to another High Court even when his transfer is effected in the public interest and not on the ground of his character or conduct. Then, how can a Judge who is transferred command the respect of the Bar and the people in the State to which he is transferred when his moral personality stands destroyed by the very ad of transfer unless the order of transfer carries a postscript that he is not being transferred on any ground of misbehaviour or incapacity?
1123. The following words of the Bhagavad Gita are quite relevant here:
laHkkforL; pkdhreZj.kknfrfjP;rs II-34 (To the honoured, infamy is surely worse than death).
1124. If a Judge with a bad reputation is transferred, then it would not subserve any public interest at all since people in the State to which he is transferred will not have faith in him. More than all, in the absence of any procedure for an enquiry in which a Judge can clear his conduct, is it fair to expose him to public ridicule? Can payment of compensation under Article 222(2) of the Constitution be of any avail to an honest Judge? Looking at the problem from another angle, can we say that the Constitution has provided for payment of a reward under Article 222(2) to a Judge who is transferred on the allegation of misbehaviour or incapacity which is not established at an inquiry? All the questions may be set at rest by reading down Article 222 as not conferring on the President the power to transfer a Judge on the basis of untested allegations or rumours about acts of misbehaviour or incapacity of the Judge and it appears that such a construction would no merely be in conformity with Articles 218 and 124(4) and (5) but also would be consistent with the independence of the judiciary As the law now stands it is not open to any single individual, whether it is the President or the Chief Justice of India or anybody else to take cognizance of any allegations of misbehaviour or of Incapacity of a Judge and to any legal action on their basis tinder the Judges (Inquiry) Act, 1968. One hundred Members of the Lok Sabha or fifty Members of the Rajya Sabha alone can initiate any action on such allegations. Naturally, all others are excluded from taking cognizance of them and acting on them. In the absence of any categorisation of acts of misbehaviour or incapacity into different classes — like those on the basis of which Parliamentary proceedings for the removal of a Judge may be Initiated and those on the basis of which an order of transfer under Article 222 of the Constitution can be passed, it would be incorrect to hold that a transfer of a Judge can be made under Article 222 on mere allegations of misbehaviour or incapacity of a Judge. Article 218 and Article 124(4) and (5) of the Constitution make it clear that Article 222 cannot be resorted to in any such case, and if it is utilised by the President in that way, the transfer would have to be set aside On the ground of excess of jurisdiction. When once it is declared that a transfer of a Judge cannot be made at all on the ground of allegations of misbehaviour or of incapacity and can only be made in the public interest, the reputation of a transferred Judge would remain unsullied and no evil consequences such as those indicated above would follow.
1125. It should be stated here that the learned Attorney-General has fairly conceded that no transfer of a Judge under Article 222 is possible on any of the grounds which may form the basis of a charge in a parliamentary proceeding under Clause (4) and (5) of Article 124 read with Article 218 of the Constitution. It is, therefore, declared that a transfer based on any such ground being outside the scope of Article 222 is liable to be set aside. But a transfer made in the public interest in accordance with Article 222 but without the consent of the Judge who is transferred is unassailable.
1126. It was faintly suggested by one of the petitioners that Article 222 of the Constitution does not in terms apply to a Chief Justice of High Court and hence the transfer of a Chief justice was bad. This contention is based on the assumption that the word ‘Judge’ in Article 222 does not include within its scope a ‘Chief Justice.’ 1127. It is submitted that Chief Justice is different from other Judges of a High Court for the following reasons: (a) Article 216 of the Constitution states that a High Court should always have a Chief Justice. It may not have any other Judges; (b) a Chief Justice’s post has to be filled up by making separate appointment under Article 217(1) even when it is filled up by a person who is already holding the post of a Judge and the method of consultation is different in his case a Chief Justice has to take a fresh oath: (c) when a Judge is appointed, the Chief Justice has to be consulted; (d) when the Chief Justice’s post is vacant or when the Chief Justice is absent, any other Judge may be appointed to perform the duties of the Chief Justice under Article 223 and the Judge so appointed functions only as an acting Chief Justice; (e) under Article 229, the Chief Justice alone ia entrusted with the duty of appointing servants of the High Court and has control over them; (f) under the Second Schedule to the Constitution, the salary of a Chief justice is fixed at Rs. 4,000/-per mensem whereas other Judges get Rs. 3,500/- only; (g) under Article 159, a Governor has to make and subscribe the oath before the Chief Justice and only in his absence before the seniormost Judges available and (h) even in the official ranking assigned for ceremonial purposes, the Chief Justice is placed higher than the other Judges of a High Court. These points of distinction between a Chief Justice and a Judge of a High Court no doubt are there but they do not appear to be conclusive for deciding the question before us.
1128. The expression ‘Judge’ is not defined in the Constitution. We have, therefore, to go through all the relevant provisions of the Constitution to ascertain its true meaning. If we proceed on the basis that the expression ‘Judge’ does not include a ‘Chief Justice,’ several anamalous results follow. In Article 217(1) the procedure for appointment of a Judge is provided. It says that every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. This clause makes it clear that the expression ‘Judge’ includes a ‘Chief Justice’ also. If a Chief Justice is not a Judge, there would be no separate age of retirement for him. Clauses (a)(b) and (c) of the proviso to Article 217(1) would also become inapplicable to a Chief justice as the word ‘Chief Justice’ is not used in them. Similarly. Article 217(1) which prescribes qualifications of a Judge, Article 217(3) which provides the procedure for determination of the age of a Judge, Article 219 which requires a Judge to make and subscribe an oath, Article 220 which imposes restrictions on the right of persons who have held office as permanent Judges to practise in certain courts. Article 221 which prescribes and protects the salaries of Judges and Article 224A which provides for appointment of retired Judges to sit and act as Judges of a High Court would become inapplicable to a Chief Justice, Article 225 which has preserved the powers of Judges of High Courts which they were exercising before the commencement of the Constitution becomes inapplicable to a Chief Justice. If the term Judge did not also include a ‘Chief Justice’ all Chief Justices of High Courts who were holding office immediately before the commencement of the Constitution had to vacate their offices on Jan, 26, 1950 because Article 378(1) and (2) referred to ‘Judges’ only. If the contention urged on behalf of the petitioners is accepted, the foregoing absurd results would ensue. Some other consequences of accepting this contention will be that the expression ‘one Judge’ occurring in Article 133(3) of the Constitution will not Include a ‘Chief Justice’ of a High Court and by analogy, the word ‘Judges’ in Article 145(2) and (3) will not include the ‘Chief Justice of India.’ 1129. In these circumstances the reasonable way to construe the above Articles of the Constitution is to interpret the word ‘Judge’ wherever it appears in the Constitution as including the ‘Chief Justice’ also except where a particular provision expressly or by necessary implication distinguishes a Chief Justice from a Judge. In all other places, the word ‘Judge’ should be considered as having been used in a generic sense. The conclusion is so self-evident that it is not necessary to support it by authorities. Article 222 of the Constitution, therefore, applies to all Judges of High Courts including a Chief Justice. Of course, a Chief Justice can only be transferred as a Chief Justice of another High Court, and not as a Judge.
1130. I may say a few words hero on the policy of appointing the Chief Justice in every High Court from outside the State. In our country we are used to the British Chief Justices presiding over the High Courts for more than a century. Many of them turned out to be distinguished Judges and the fact that they were functioning in a country which they had not known before did not act as any hindrance to their work. Even the ignorance of any of the local languages did not act as a serious obstacle to their functioning efficiently.
1131. The Fourteenth Report of the Law Commission having considered the question of appointment of Chief Justices of High Courts from outside the State observed in Chapter VI 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.
27. On the other hand it has been urged with considerable force, that it would not be fair, that competent persons on the Bench of the State High Court should be shut out from the chance of occupying the office of the Chief Justice in their own States. It has also been pointed out that the proposed practice may prevent members of the Bar from accepting appointments as Judges, the opportunity of serving as Chief Justices in their own States being denied to them.
28. On the whole we are of the view that it would be difficult to lay down such an inflexible practice. It should, we think, be clearly understood, that the seniormost puisne Judge of a Court should not merely by reason of his seniority have an expectation of succeeding to the office of the Chief Justice, In every case of a vacancy in the office of the Chief Justice, the senior puisne Judge should be appointed to the office, only if he has the necessary qualifications. Indeed the Chief Justice of India may well bear in mind the desirability of appointing a Chief Justice from outside the State by reason of the consideration we have mentioned. Even in cases where the seniormost puisne Judge is fit to occupy the office, it would be doing no injustice to him to leave him out and appoint him to a similar office in another State.
1132. The 80th Report of the Law Commission observed in Chapter VI thus:
6.19. It would not be a healthy practice in case the seniormost Judge is considered not suitable for the office of Chief Justice to appoint a junior Judge from the same court as Chief Justice, In such an event, the proper course, in our opinion, would be to appoint some Judge from outside the State. It should also be ensured that the Judge so appointed as Chief Justice should have been on the High Court Bench for a sufficiently long time and should have that much seniority as a Judge as not to cause resentment in the senior Judges of the High Court that someone junior in service has been appointed in supersession of their claim. While appointing someone from outside the State as Chief Justice of the High Court, care must also be taken to see that his tenure as Chief Justice is not so long as to block the chances of not only the seniormost Judges but also of other Judges in the High Court. By the words “blocking the chances,” we mean hot only preventing the appointment of a person as Chief Justice but also substantially reducing the length of his term as Chief Justice. Of course, arithmetical exactitude and precision in these matters cannot be insisted upon.
1133. Neither of the above two Reports of the Law Commission, however, notices any impropriety in appointing Chief Justices from outside. Such practice has its own distinct advantages particularly in these days. Since the Chief Justice of India has got to be consulted before appointing a Chief Justice of a High Court one may feel assured that there will be very little room for anything prejudicial to the community of High Court Judges happening by the implementation of the policy of appointing Chief Justices of the High Courts from outside the State. The advantages of having some Judges in every High Court from outside have been considered by some high-power bodies earlier.
1134. The States Reorganisation Commission presided over by Justice S. Fazal Ali, former Judge of the Supreme Court of India in its Report prepared in the year 1955 observed at paragraph 861 thus:
861. 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, 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 consideration. 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.
1135. In para 58 of the Summary of Conclusions and Recommendations given at the end of its Report, the States Reorganisation Commission recommended:
58. 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. (para 861).
1136. The Study Team on center-State Relationships (Shri M.C. Setalvad former Attorney-General was the Chairman of the Team) appointed by the Administrative Reforms Commission also considered the question of appointment of High Court Judges in its Report submitted in the year 1968. Dealing with the recommendations of the States Reorganisation Commission On the above questions, the Study Team observed:
We would nevertheless suggest that, without necessarily preparing panels, the recommendation of the States Reorganisation Commission should be given effect to as far as possible. Some “outside” appointments are made even now but these are few and far between. A serious effort to increase their number will make its own contribution to efficiency, independence and national integration. Unlike the suggestion for the panel, this proposal does not affront any canons of delicacy and discretion. And yet a couple of objections might be raised and need to be dealt with:
(a) obviously when appointing an “outsider”, it will be necessary to consult the Chief Justice and the government of the State from which he hails. As the Chief Justice of the High Court in which the vacancy occurs will not have any personal knowledge of the suitability of the candidate, he will he unable to give his opinion although constitutionally required to do so. The objection is of a technical nature. The spirit behind the present procedure is that the opinion of the Chief Justice who knows the candidate’s reputation and ability should be given due weight. We notice that “outside” appointments have been made in the past without any constitutional difficulties arising. The same could continue to happen in the future. Difficulties might arise if Chief Justices of High Courts to which ”outsiders” are allocated object frequently to candidates so allocated. But the whole approach recommended here postulates an enlightened national policy on the problem to which Chief Justices can be expected to subscribe. Normally, therefore, a Chief Justice should not object to the allocation of a carefully selected man. There is in any case no virtue in making any Bench the monopoly of the local Bar irrespective of available merit there or not;
(b) it may be thought that the authority and prestige of a High Court would be affected in case members of an outside Bar are appointed to it. This is an insubstantial objection, because a High Court must command respect for the quality of justice that it dispenses and not for its ability to promote members of its Bar to the Bench. Leaving this aside, the proposal in any case does not envisage that more than one-third of the number of judges of a High Court will come from outside. This cannot (sic) affect the prestige and authority of the High Courts and the Chief Justices. Besides, any fancied diminution in the position of the Chief Justice on account of this one-third component from outside will be offset by the fact that candidates from his State may be going to other High Courts through a selection procedure in which he is associated.
(Vide Report of the Study Team on center-State Relations, Vol. I cages 188-190).
1137. Accordingly the Study Team recommended at page 195 Volume I of its Report that as far as practicable, one-third of the number of Judges of a High Court should be from outside.
1138. It appears from paragraph 13.21 of Volume I of the Report of the Study Team that the Chief Justices themselves had pressed for the trans-ferability and the formation of an all-India cadre of ‘judges. The relevant part of that paragraph reads -.
13.21…Transferability and the formation of an all-India cadre of Judges was urged by the Chief Justices on the following grounds:
(i) that such a cadre would have the advantages of extending the field of choice of High Court Judges and of regulating the staffing of the higher judiciary on the same lines as that of the civil service;
(ii) that a judiciary so recruited would be more independent having less local connections;
(iii) that the difficulty experienced in constituting division benches in hearing cases as one or more of the judges recruited from the State had been engaged in the case at an early stage either as counsel or as party or happened to be related to one or more of the litigants would be avoided;
(iv) that a unified cadre of High Court Judges with free transfers all over the country would help to break down the barriers bf regionalism which held sway in many parts of the country 1139. The foregoing shows that the Chief Justices did not find anything objectionable in the transfers of Judges provided they were made in accordance with Article 222 of the Constitution The Study Team, however, followed the recommendation made in the Fourteenth Report of the Law Commission but added.
We consider that it is important to make “outside” appointments a reality, and that once that is done it is not necessary to insist on a regular system of transfers 1140. The 80th Report of the Law Commission has also approved the above idea of having some Judges in every High Court from outside.
1141. The principle underlying this policy is not something new to oriental countries. In the latter half of the eighteenth century in China, there was in vogue a rule called the ‘Law of Avoidance. “The ‘Law of Avoidance required that no one be appointed to high positions in his native province and no two members of the same family be allowed to work in the same locality or service, so as to prevent nepotism and the forming of cliques”. (Immanuel C.Y. Hsu: “The Rise of Modem China’, Second Edition. p. 62) 1142. One of the arguments in favour of appointing one-third of the Judges in every High Court from outside the State is that such a step would assist in bringing about national integration. It is my view that there is a flood deal of substance in this argument although some dismiss the idea very lightly, Clauses (a) to (e) of Article 51A of the Constitution need to be quoted here:
51A. It shall be the duty of every citizen of India–
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities;….
1143. Article 51A of the Constitution which lays down the fundamental duties of the citizens of India was introduced into the Constitution with effect from Jan, 3, 1977 probably to remind Indiana of certain values which they were slowly neglecting during the period of thirty years following the independence of the country. Even in the year 1963 itself by the Constitution (Sixteenth Amendment) Act, 1963, the form of oath to be taken by a Judge which is set out in the Third Schedule to the Constitution was amended by adding the words “that I will uphold the sovereignty and integrity of India”, The preamble of the Constitution was amended with effect from January 3, 1977 by substituting the words “unity and integrity of the Nation” in the place of the words “unity of the Nation” which were there earlier. These amendments had to be made to fight the divisive forces which were raising their ugly heads in different corners of India. The nation should be grateful to the makers of the Constitution for enacting the provisions relating to the Indian judiciary which have brought into existence an unitary judicial system in a federal Constitution. Law (dharma) has always been an unifying force in India. The entire country from Kashmir to Kanya Kumari possesses this great inner bond of unity. Judges and lawyers who are the votaries of Indian law should feel proud of their heritage. Just as the Indian soldier feel proud of defending the borders of the country treating the whole country as a single unit, Judges and lawyers should feel that they are a part of a single judicial system operating throughout India and that they are not just members of one State or another. They should be prepared to work in any part of India irrespective of the State in which they are born or brought up. Today no High Court can afford to remain isolated from other High Courts as a judicial island. Lawyers and Judges of one High Court should be prepared to receive with open arms lawyers and Judges of other High Courts. They should also be prepared to spare the services of their Judges to be utilised in other High Courts. It is only then the dream of an integrated Bar and of an integrated judiciary will be fully realised. The Indian judicial system in one way is a great forging instrument of unity which, if properly used, can assist the country in bringing about national integration which is no longer a mere slogan. National integration is an absolute necessity now. O national integration is not a matter of public interest, what else can be in the public interest.
1144. It is difficult to believe that Judges who day in and day out are applying decisions of English, American and Australian courts while administering justice will not be able to pick up the local laws in force in the State in which High Court to which they are transferred is situated. Are not the Judges of the Supreme Court who come from different States deciding cases from all the States in which very often they have to construe one local law or the other ? The argument that the efficiency of Judges will suffer if they are transferred is merely an argument of despair which has got to be rejected.
1145. The plea that a Judge of a High Court should always know the language of the region is again unsustainable. The Constitution makers knew that in India there were a number of regional languages. Yet they enacted Article 222 of the Constitution without any limitation. A Judge of one High Court who does not know the, regional language of another State may be transferred to the High Court of that State. It is well known that many Britishers who did not know any Indian language discharged their functions, very efficiently as High Court Judges in India before the commencement of the Constitution. The language of the High Courts has always been English. Even after the commencement of the Constitution, many Judges who did not understand the local language have functioned as High Court Judges to the satisfaction of all concerned. When the reorganisation of State took place in 1996, the States Reorganisation Commission consisting of Shri Justice Fazal Ali, Shri H.N. Kunzru and Shri K.M. Panikkar strongly pleaded as stated earlier for appointment of at least one-third of Judges of a High Court from outside the State. English is now the language of the Supreme Court and all the High Courts. Article 348 of the Constitution reads:
348(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides–
(a) all proceedings in the Supreme Court and in every High Court.
(b) the authoritative texts –
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State.
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinance promulgated by the President or the Governor of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in English language.
(2) Notwithstanding anything in Sub-clause (a) of Clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:
Provided that nothing m this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in Sub-clause (b) of Clause (1), where the Legislature of a State has prescribed any language other that the English language for use in Bills introduced in or Acts passed by the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.
1146. Judges of one High Court trained in English language should not, therefore find any difficulty in carrying on their duties in other High Courts which are situated in other States. All the high-power bodies which have expressed their opinion in favour of transfers of Judges have felt that, the advantages flowing from the transfers of High Court Judges would outweigh the disadvantages, if any, including those flowing from the various regional languages of India. It is not possible to hold that the transfers of Judges would be opposed to the public interest on this ground also, 1147. It is pertinent to deal with a statement made in Sankalchand Sheth’s Case which reads as follows:
Policy transfers on a wholesale basis which leaves 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 1148. On the basis of this it is argued that policy transfers as such are not permissible under Article 222 of the Constitution. I do not understand the above said observations as conveying that meaning and if they so convey that meaning, then it has to be observed that they are too broadly made. What the above statement means is that even where a transfer is made pursuant to a valid policy, each transfer should receive adequate consideration at the hands of the authorities concerned. All other relevant matters in relation to the Judge who is proposed to be transferred pursuant to the policy should be considered before ordering his transfer. If on such consideration it is found that he should not be transferred, the proposal should be given up and the question of transferring another Judge in furtherance of the policy may be taken up for consideration. By doing so the policy remains unaffected and the public interest to be served by the policy also would not suffer. But if it is argued that the above statement bars every, transfer made pursuant to a policy which is in the public interest then it has to be held that to the extent it bars such transfers is opposed to the provisions of Article 222 which empowers the President to transfer a Judge after due consultation with the Chief Justice of India, of course, in the public interest and is thus not binding as such a construction would curtail the width of the power under Article 222.
1149. I am of the view that in view of the foregoing reasons and opinions expressed by several expert bodies any transfer of a Judge of a High Court under Article 222 of the Constitution in order to implement the policy of appointing the Chief Justice of every High Court from outside the State concerned and of having at least one-third of the Judges of every High Court from outside the State, of course, after consultation with the Chief Justice of India would not be unconstitutional.
PART VIII 1150. In order to establish their case, learned Counsel appearing for Shri V.M. Tarkunde and Shri S.N. Kumar, called upon the Union Government to produce the records pertaining to the consultations made by the President under Article 217(1) of the Constitution in so far as the case of Shri S.N. Kumar was concerned. The demand made by them was opposed by the Union Government on the ground of privilege. It was contended by the Union Government that the documents whose discovery was sought being those containing communications made by high constitutional functionaries regarding a high level appointment it would not be proper to compel the Union Government to produce them.
1151. The question which relates to the circumstances in which the Government can claim that the documents, the production of which is demanded before a court of law, should not be compelled to be produced on the ground of privilege is of great constitutional importance. In Duncan v. Cammell, Laird & Company Ltd. (1942) AC 624, decided during the Second World War by the House of Lords such a question arose for consideration. On June 1, 1939, the submarine, Thetis, which had been built by the respondents in that case under contract with the Admiralty was undergoing her submergence tests in Liverpool Bay, and while engaged in the operation of a trial dive sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface with the result that all who were in her, except four survivors were overwhelmed. Ninety-nine men lost their lives. A large number of actions were instituted by those representing, or dependent on, some of the deceased against respondents and three other persons claiming damages for negligence. All of these actions, except two, were stayed until after the trial of two test actions, which were consolidated, the plaintiffs in those two test actions being the appellants in the above case. The respondents in their affidavits of documents objected to produce certain documents called for by the appellants on the ground that they (the respondents) had been asked by the Treasury Solicitor on behalf of the First Lord of the Admiralty not to produce the said documents which had come into their possession under a contract with the Government and to claim Crown Privilege In respect of them. The First Lord of the Admiralty also filed an affidavit stating that the documents in question had been considered by him and he had formed the opinion that it would be injurious to the public interest that any of the said documents should be disclosed to any person. The documents, to the production of which objection was thus taken included (either in original or in copy) the contract for the hull and machinery of the Thetis, letters written before the disaster relating to the vessel’s trim, reports as to the condition of the Thetis when raised, a large number of plans and specifications relating to the various parts of the vessel etc. The trial Judge declined to allow inspection of the documents and the Court of Appeal affirmed his decision. The House of Lords also upheld the claim of privilege by a unanimous decision, holding that a Court of law should uphold an objection taken by a public department called on to produce documents in a suit between private citizens if on grounds of public-policy they ought not to be produced and that documents otherwise relevant and liable for production must not be produced if the public interest required that they should be withheld. The House of Lords in that case laid down two tests on which documents may be withheld — one based on the contents of the documents and the other namely the class to which the documents belonged, which on grounds of public interest must be withheld from production. It proceeded to lay down that an objection validly taken on the ground that it would be injurious to the public interest was conclusive. But it was held that the mere fact that the minister of the department did not wish the documents to be produced was not an adequate Justification for objecting to their production. Production could also be withheld when the public interest would otherwise be dandified as where disclosure would be injurious to national defence or to good diplomatic relations or where the practice of keeping a class of documents secret was necessary for the proper functioning of the public service. In such a case, it was held that the Court should not require to see the document for the purpose of ascertaining whether disclosure would be injurious to the public interest. It was further held that it was essential that the decision to object should be taken by the minister who was the political head of the department concerned and that he should have seen and considered the contents of the documents and himself formed the view that on grounds of public interest they ought not to be produced and such objection should ordinarily be taken in an affidavit of the minister. This decision, it may be seen, laid down that privilege could be claimed in respect of a document on two alternative grounds viz., (a) that the disclosure of the contents of the document would be injurious to the public interest by endangering national security or diplomatic relations and (b) that the document belonged to a class which should not be disclosed to ensure the proper functioning of public service. Viscount Simon who spoke for the House of Lords in this case expressed! his disagreement with the decision of the Privy Council in Robinson v. State of South Australia (No. 2) (1931) AC 704, in which it had been held that it was proper for a court to inspect the documents in respect of which privilege had been claimed to determine whether their production would be prejudicial to the public welfare. In the course of his speech, the noble Lord observed at page 641 thus:
As Lord Parker said in another connection : “Those who are responsible for” the national security must be the sole Judges of what the “national security requires” : The Zamora (1916) 2 AC 77 107. In Robinson v. State of South Australia (No. 2) (1931) AC 704, the Judicial Committee reversed the decision of the Supreme Court of South Australia, which had refused to order the inspection of documents which the Minister in charge of the department objected to produce of grounds of public policy, and remitted the case to the Supreme Court with the direction that it was one proper for the exercise of the Court’s power of inspecting documents to determine whether their production would be prejudicial to the pub-lie welfare. I cannot agree with this view. Their Lordships’ conclusion was partly based on their interpretation of a rule of Court which was in the same terms as Order XXXI, Rule 19A, Sub-rule (2), of the Rules of the English Supreme Court. This sub-rule provides: “Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a Judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege.” In my opinion, the Privy Council was mistaken in regarding such a rule as having any application to the subject-matter. The doubt expressed on the point by du Parcq L.J. in the present case if fully justified. The withholding of documents, on the ground that their publication would be contrary to the public interest is not properly to be regarded as a branch of the law of privilege connected with discovery. “Crown privilege” is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him, 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 interests or claims of the particular parties in litigation, and, indeed, is a rule on which the Judge should, if necessary, insist, even though no objection is taken at all.
1152. Nearly five years after the Judgment in Duncan’s case (1942) AC 624 (supra) the Crown Proceedings Act, 1947 was passed by the British Parliament and the Crown privilege recognised under the common law was regulated by Section 28 of the said Act. But that section was, however, subject to the proviso that it could not override any rule of law which authorised or required the withholding of any document or the refusal to answer any Question on the ground that the disclosure of the document or the refusal to answering of the question would be injurious to the public interest.
1153. Robinson’s case (1931) AC 7041 (supra) which was dissented from by the House of Lords as stated above arose out of an action in South Australia. The Judicial Committee had held in that case that a South Australian Rule which provided that where on an application for an order for inspection, privilege was claimed for any document it was lawful for the Court or a Judge to inspect it for the purpose of deciding as to the validity of the claim applied where privilege was claimed for an official document on the ground that its disclosure would be contrary to the interests of the public even though the claim was supported by a statement to that effect by the Minister responsible. It was further held that the Court had always in reserve, the power to inquire into the nature of the document for which protection was so sought and to require some indication of the injury which would result from its production. The Judicial Committee added that the claim to protection in the case of documents relating to trading, commercial or contractual activities of a State could rarely be sustained especially in time of peace and that documents would prejudice the case of the State in the litigation or assist the other party was a compelling reason for their production only to be over borne by the gravest reasons of State policy or security.
1154. In three cases which came before the Court of Appeal after Duncan’s case (1942) AC 624 (supra) was decided by the House of Lords, while it was held that on matters touching national security and foreign affairs, the application of the principle enunciated in the Duncan’s case (supra) in an unqualified manner was not open to question, doubts were entertained about its application without modification to a class of documents (See Merricks v. Nott-Bower (1964) 1 All ER 717, Re Grosvenor Hotel, London (No. 2) (1964) 3 All ER 345 and Wednesbury Corporation v. Ministry of Housing and Local Government (1965) All ER 186). When it was asserted by the Attorney-General that so long as the objection was taken in proper form, the Judge must treat the claim of privilege as conclusive, in Re Grosvenor Hotel’s case (supra) Lord Denning, M.R. alter referring to the practice prevailing in Scotland and Commonwealth countries, observed at pages 361-362 thus:
In view of these developments, I think that it is open to the House and I believe to us, to reconsider the matter and I must say that, in my judgment, the law of England should be brought into line in this matter with that of Scotland and of the rest of the Commonwealth. The objection of a Minister, even though taken in proper form, should not be conclusive, If the Court should be of opinion that the objection is not taken in good faith, or that there are no reasonable, grounds for thinking that the production of the documents would be injurious to the public interest, the Court can override the objection and order production. It can, if it thinks fit, call for the documents and inspect them itself so as to see whether there are reasonable grounds for withholding them ensuring, of course, that they are not disclosed to anyone else. It is rare indeed for the Court to override the Minister’s objection, but it has the ultimate power, in the interests of justice, to do so. After all, it is the Judges who are the guardians of justice in this land; and if they are to fulfil their trust, they must be able to call on the Minister to put forward his reasons so as to see if they outweigh the interests of justice.
1155. The privilege based not on their contents but on the class to which the documents belonged was held to be not acceptable. On balance however the Court of Appeal upheld the privilege in the light of the above observations.
1156. It is interesting to notice here the recommendation made by the General Council of the Bar in England in a memorandum issued by it in Feb., 1956 after a critical examination of the decision in Duncan’s case (1942) AC 624 (supra). In para 15 of that memorandum the Council recommended thus:
We therefore recommend–
(1) A departmental head seeking the exclusion of any evidence should be required to state in his affidavit whether the adduction of such evidence would be prejudicial to the national security, including diplomatic relations, or some other head of public interest, which he should specify.
(2) In either case the departmental head should be required to state whether the evidence would be so prejudicial when adduced in open or in closed Court.
(3) Where his claim to privilege is based on ground of national security it should be conclusive.
(4) Where his claim is based on grounds of public interest other than national security it should be examinable by the Court.
(5) The Court should be given power to order a hearing or partial hearing in closed Court on the ground that publication of any evidence to be given in the course of the proceedings would be prejudicial to the national safety or the national nterest.
(Vide Appendix 4 to ‘Law and Orders’ by C.K. Alien, 2nd Edn.) 1157. Lord Chancellor Viscount Kilmuir also made a statement on June 6, 1956 in the House of Lords on the question of Crown privilege arising out of the decision in Duncan’s case (1942) AC 624 (supra). In the course of that statement after referring to the two grounds on which privilege could be claimed according to Duncan viz., (a) that the disclosure of the particular document would injure public interest e.g., by endangering public security or prejudicing diplomatic relations and (b) that the document fell within a class which the public interest required to be withheld from production, Lord Kilmuir stated thus:
The claiming of Crown privilege on the first ground that I have mentioned has always been acceptable to the Courts and public opinion. Where, however, the claim has been made on the ground that the document belongs to a class, especially, in proceedings where the Crown’s position seems very like that of an ordinary litigant, it has been criticised on the ground that the administration of justice is itself a matter of public interest and should be weighed against the other head of public interest, that is, ‘the proper functioning of the public service.’ The reason why the law sanctions the claiming of Crown privilege on the ‘class’ ground is the need to secure freedom and candour of communication with and within the public service, so that Government decisions can be taken on the best advice and with the fullest information. In order to secure this it is necessary that the class of documents to which privilege applies should be clearly settled, so that the person giving advice or information should know that he is doing so in confidence. Any system whereby a document falling within the class might, as a result of a later decision, be required to be produced in evidence, would destroy that confidence and undermine the whole basis of class privilege, because there would be no certainty at the time of writing that the document would not be disclosed.
It is sometimes suggested that a claim for privilege on the class basis should be referred to and decided by a Judge. This suggestion goes much further than the position in Scotland, where the power of the Judge is only exercisable in very special circumstances’ and does not permit any examination of the ground of the claim. This ground namely, ‘the proper functioning of the public service’, must in our view be a matter for a Minister to decide, with his knowledge of government and responsibility to Parliament, rather than for a Judge.
A Judge assesses the importance of a particular document in the case that he is hearing, and his inclination would be to allow or to disallow a claim for privilege according to the contents and the relevance of the document, rather than to consider the effect on the public service of the disclosure of the class of documents to which it belongs. The result would be that the same kind of document would sometimes be protected and sometimes disclosed, which would, as I have said, be destructive of the whole basis of the class privilege.
I would emphasise that claims of Crown privilege are made in respect of all documents falling within the class, irrespective of whether their production would be favourable or unfavourable to the Crown’s interests. All Crown lawyers are familiar with cases in which the Crown’s interests have in fact been prejudiced by the application of the rule.
The proper way to strike a balance between the needs of litigants and those of Government administration is, in our opinion, to narrow the class as much as possible by excluding from it those categories of documents which appear to be particularly relevant to litigation and for which the highest degree of confidentiality is not required in the public interest.
(Vide Appendix 4 to Law and Orders’ by C.K. Alien, 2nd Edition, pp. 467-468).
1158. The three decisions of the Court of Appeal referred to above which had been decided by Lord Denning M.R. Herman and Salmon, L. JJ., came up for consideration again before the Court of Appeal in Conway v. Rimmer (1967) 2 All ER 1260 consisting of Lord Denning, M.R. Davies and Russell, L. JJ. The relevant facts of this case were these. The plaintiff, a probationer police constable was prosecuted by a Superintendent in the constabulary on a charge of stealing an electric torch belonging to another probationer constable. The prosecution failed and the plaintiff was acquitted but soon afterwards he was dismissed from the police force as unlikely to become an efficient police officer. The plaintiff sued the Superintendent for malicious prosecution. On discovery in the action, the Home Secretary claimed Crown privilege for a class of documents which included the probationary reports relating to the plaintiff and the report leading to his prosecution; the privilege was claimed on the ground that discovery of documents of that class would be contrary or injurious to the public interest. The claim of privilege was in proper form. It was not suggested that the claim was not taken in good faith or that the Home Secretary was mistaken in thinking the documents to be of the class stated. The Registrar of the Court directed the defendant to produce the documents. But Browne, J., allowed the appeal by the defendant and the Attorney-General and disallowed the claim for discovery. It is this order which was questioned before the Court of Appeal, In this case, Lord Denning who was in the minority directed the production of the documents. The other two learned Judges, however, felt that Duncan’s case (1942) AC 624 (supra) could not be departed from by the Court of Appeal and that the observations in the three cases referred to above questioning the validity of the privilege based on the class to which the particular document belonged were not binding. Davies L.J. with whom Russell, L.J. agreed observed at pp. 1271-72 thus:
I turn now to the 1964 trilogy of cases, namely, Merricks v. Nott-Bower (1964) 1 All ER 717; Re Grosvenor Hotel London (No. 2) (1964) 3 All ER 354; and Wednesbury Corporation v. Ministry of Housing and Local Government (1965) 1 All ER 186, mentioned earlier in this Judgment and decided in this Court by the same trinity of Judges, viz., Lord Denning, M.R., Harman and Salmon L. JJ. The judgment in those cases are, of course, most weighty and most interesting; but, with the greatest respect, I cannot accept them as decisions that English Law is other than I have suggested that it is. Some general observations may be made about those cases. In the first place, in not one of them did the Court order production of the documents in question or itself inspect them; so that, whether or not the observations made in those cases were obiter, as in that state of affairs I am inclined to think that they were, the Crown had no opportunity of challenging in the House of Lords the validity of the views expressed in this Court. Secondly, in each case the Court was much exercised about the form and sufficiency of the Minister’s certificate or affidavit. In the present cave no such question arises. Third, all those decisions proceeded on the basis that there was a difference or dichotomy, as Harman, L.J. called it in Re Grosvenor Hotel, London (No. 2) (1964) 3 All ER at pp. 364, 365 between contents cases and class cases; though it would appear that Salmon, L.J. would make a sub-division between high “class” cases and low “class” cases (See (1964) 3 All ER at pp 370 and 371). I am bound to say that I can see no logical distinction, though there obviously may be a practical one, between high class cases and low class cases, any more than there is between class cases and contents cases. Fourth, all of the Judgments proceeded on the basis that the observations of Viscount Simon in Duncan’s case (1942) 1 All ER 587, as to class cases were obiter and wrong. Fifth, very little weight was attached in nay of those cases to the decision in Auten v. Rayner (1958) 3 All ER 566. Finally, all the Judges were exercised in their minds as to desirability of the law of England in this respect being the same as that of Scotland and of Com’ monwealth countries, such as Australia, Canada and New Zealand. Whether the law in those Commonwealth countries, whose Courts are, of course, influenced by Robinson v. State of South Australia (No. 2) (1931) All ER Rep 333; is precisely the same as the law of Scotland, as laid down In Glasgow Corporation v. Central Land Board 1056 SC (HL) 1 is, perhaps, open to doubt. That it is desirable that the law on this important constitutional matter should be the same every where is beyond question; but, in my judgment, the only tribunal in this country which can achieve that object is the House of Lords, who now have the power to alter or vary the decision at which, as I have said, in my opinion they arrived in Duncan’s case (1942) 1 All ER 587.
1159. The appeal was dismissed in accordance with the opinion of the majority.
1160. The clock was thus again put back by the Court of Appeal. Conway’s case (1967) 2 All ER 1260 (supra) was taken up in appeal before the House of Lords in Conway v. Rimmer (1968) 1 All ER 874 (HL), After a review of a number of decisions which had been rendered before Duncan’s case (1942) AC 624 including Robinson’s case (1931) AC 704 decided by the Privy Council and the decisions of the Court of Appeal subsequent to the decision in Duncan’s case, the House of Lords reversed the decision of the Court of Appeal. It directed that the documents in question should be produced before the Court which had called them for its inspection and if it was found that their disclosure would not be prejudicial to the public interest or that any such possible prejudice would be insufficient to justify non-disclosure, an order for disclosure of the reports should be made.
1161. It is important to note that in this case one Lord after another rejected the contention that the possibility of future disclosure would affect candour. Lord Reid observed at page 831: “So far as I know, however, no one has ever suggested that public safety has been endangered by the candour or completeness of such reports having been inhibited by the fact that they may have to be produced if the interests of the due administration of justice should ever require production at any time” Lord Morris observed at page 891: “In many decided cases, however, there have been references to a suggestion that if there were knowledge that certain documents (e.g. 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 suggestion 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. The law is ample in its protection of those who are honest in recording opinions which they are under a duty to express. Whatever may be the strength or the weakness of the suggestion to which I have referred it seems to me that a Court is as well and probably better qualified than any other body to give such significance to it as the circumstances of a particular case may warrant”. Lord Hodson observed at page 904: “It is strange if civil servants alone are supposed to be unable to be candid in their statements made in the course of duty without the protection of an absolute privilege denied other fellow subjects”. Lord Fearce said at page 912: “There are countless teachers at schools and universities, countless employers of labour who write candid reports unworried by the outside chance of disclosure….”
Lord Upjohn observed at pages 914-915: “The reason for this privilege is that it would be quite wrong and entirely inimical to the proper functioning of the public service if the public were to learn of these high level communications, however, innocent of the prejudice to the State the actual contents of any particular document might be, that is obvious. It has nothing whatever to do, however, with candour or uninhibited freedom of expression, I cannot 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 observations might one day see the light of the day”. Commenting on this decision, H.W.R. Wade wrote : “Their Lordships heaped withering criticism upon this class “principle” which is that complete classes of official reports and documents ought to be kept secret, at whatever cost to the interests of litigants, merely because otherwise there would not be “freedom and candour of communication with and within the public service”” (Vide ‘Crown Privilege Controlled at Last’ by H.W.R. Wade (1968) 84 The Law Quarterly Review 171 at p. 172). Dun-can’s case (1942) AC 624 (HL) (supra) stood accordingly modified.
1162. In Rogers v. Home Secretary (1973) AC 388, the appellant required the production of a certain letter written about him to the Gaming Board for Great Britain which had the duty to make unusually extensive inquiries not only into the capacity and diligence of all applicants for licences to maintain gaming establishments but also into their character, reputation and financial standing and any other circumstances appearing to the Board to be relevant before issuing licences under the Gaming Act, 1968. Applications made by a Company of which the appellant was a director had been refused by the Board. It was the custom of the Board to obtain confidential information about applicants from the police. The appellant said that there came into his possession from an anonymous source a copy of a letter written about him to the Board by Mr. Ross, Assistant Chief Constable of Sussex. Obviously this letter had been abstracted by improper means from the files of the Board or of the Police. The appellant said that this letter contained highly damaging libellous statements about him and that he wished to take proceedings to clear his reputation. The means he phose for doing that was to seek to prosecute Mr. Ross for criminal libel. To succeed he bad to prove the letter. So he applied for its production, The Attorney-General opposed the summons and he succeeded. The House of Lords in appeal in the above case upheld the privilege. Lord Reid “observed in the course of his speech at pages 401-401 thus:
The ground put forward has been said to be Crown privilege. I think that that expression is wrong and may be misleading. There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a Court of Justice all relevant evidence. A Minister of the Crown is always an appropriate and often the most appropriate person to assert this public interest, and the evidence or advice which he gives to the court is always valuable and may sometimes be indispensable. But, in my view, it must always be open to any person interested to raise the question and there may be cases where the trial Judge should himself raise the question if no one else has done so. In the present case the question of public interest was raised by both the Attorney-General and the Gaming Board. In my judgment both were entitled to raise the matter. Indeed I think that in the circumstances it was the duty of the board to do as they have done.
The claim in the present case is not based on the nature of the contents of this particular letter. It is 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 character, reputation or antecedents of applicants for their consent.
Claims for “class privilege” were fully considered by this House in Conway v. Rimmer 1968 AC 910. It was made clear that there is a heavy burden of proof on any authority which makes such a claim. But the possibility of establishing such a claim was not ruled out. I venture to quote what I said in that case at p. 952:
There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan v. Cammell Laird & Co. Ltd. (1942) AC 624, 642, whether the withholding of a document because it belongs to a particular class is really ‘necessary for the proper functioning of the public service’.
I do not think that “the public service should be construed narrowly. 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. If it is, then we are enabling the will of Parliament to be carried out.
1163. In a later case before the House of Lords i.e., Burmah Oil Co. Ltd. v. Bank of England (1979) 3 All ER 700 it was again laid down that there was no rule of law that a claim by the Crown on the grounds of public interest for immunity from production of a class of documents of a high level of public importance was conclusive and that the Court had the power to inspect the documents before deciding whether they should be disclosed after balancing the competing interests of preventing harm to the State or the public service by disclosure and preventing frustration of the administration of justice by withholding disclosure.
1164. In the last decision of the House of Lords to which our attention is drawn i.e., Science Research Council v. Nasse (1980) AC 1028, the question as to how far confidentiality could be a ground for claiming privilege in respect of any document arose for consideration. That case arose out of disputes between two employees and their employers which were raised before the Industrial Tribunal. The employees’ complaint was that they had been discriminated against by their employers in the course of their employment. Before the Tribunal they were called upon for production of some documents. The Court of Appeal had allowed appeal of the employers holding that if the documents were disclosed it would be in gross breach of faith and could lead to industrial trouble. Dismissing the appeal, the House of Lords held that while no principle of public interest immunity protected such confidential documents and that they were not immune from discovering by reason of confidentiality alone, the Tribunal in the free exercise of its discretion to order discovery should have regard to the fact that they were confidential and that discovery would be a breach of confidence, so that accordingly, relevance alone though a necessary ingredient did not provide an automatic test for discovery, the ultimate test being whether discovery was necessary for disposing fairly of the proceedings and in order to decide whether it was ‘necessary, the tribunal should inspect the documents considering whether special measures such as “covering up” or hearing in camera should he adopted. Dealing with the rule of ‘public interest immunity’ claimed by a person who is called upon to produce any document, Lord Scarman observed in the above case thus:
Whatever may be true generally, of the categories of public interest, the “public interest immunity”, which prevents documents from being produced or evidence from being given is restricted, and is not, in my judgment, to be extended either by demanding ministers or by the courts. And, though I agree with my noble and learned friend, Lord Edmund-Davies, in believing that a Court may refuse to order production of a confidential document if it takes the view that justice does not require its production, I do not see the process of decision as a balancing act. If tile document is necessary for fairly disposing of the case, it must be produced notwithstanding its confidentiality. Only if the document should be protected by public interest immunity, will there be a balancing act. And then the balance will not be between “ethical or social” values of a confidential relationship involving the public interest and the documents relevance in the litigation but between the public interest represented by the state and its public service i.e., the executive Government, and the public interest in the administration of justice : see Lord Reid. Thus my emphasis would be different from that of my noble and learned friends. “Public interest immunity” is, In my judgment restricted to what must be kept secret for the protection of government at the highest levels and in the truly sensitive areas of executive responsibility.
1165. In England, according to Prof. S.A. De Smith, as matters now stand “a government department can seldom expect to succeed in a claim based solely on prospective detriment to that facet of the public interest which requires candid expressions of opinion within the public service. In any event the Court will prefer to rest a decision to exclude evidence on a more general ground than “Crown privilege” — e.g., that it is contrary to the public interest to require the disclosure in legal proceedings of information obtained in confidence for a limited purpose, Courts are likely to accept without question a Minister’s certificate that disclosure would be ‘injurious to national security or diplomatic relations, or that the document relates to Cabinet proceedings; but in any marginal case they can be expected to insist on privately inspecting the documents or classes of documents and then rejecting claims to exclude evidence of “routine” matters but accepting claims to exclude documents referring to matters of high policy. It is doubtful whether any material distinction is now to he drawn between “contents” claims and “class” claims.”
1166. The scope of the powers of Courts in England where a claim to privilege is made is also explained at para 90 in Volume 13 of Halsbury’s Laws of England, (Fourth Edition) thus:
90. Powers of Court.– The decision whether to allow or reject the claim to Crown privilege, and if so to what extent, is and remains the decision of the Court, and the view of the political minister that the production or disclosure of documents or information, whether because of their actual contents or because of the class of documents to which they belong is not conclusive. The Court will give full weight to the view of the minister in every case, but it has and is entitled to exercise a residual power, and indeed a duty, to examine the objection and the grounds raised by the minister to support his view that production would be injurious to the public interest. If, in spite of the certificate or affidavit of the minister, the Court is satisfied that the objection is not taken bona fide or that the grounds relied on by the minister are insufficient or misconceived or not clearly expressed or that there are no reasonable grounds for apprehending danger to the public interest, the Court has a residual power to override the objection. For this purpose, the Court is entitled to see the documents before ordering production, and the Court can see the documents without their being shown to the parties, but the minister should have a right to appeal before the documents are in fact produced.
The Court will more readily uphold an objection on the ground of the contents of a document, and for this purpose the minister need not go into any detail. But where the minister raises the objection to production on the ground that the documents belong to a class the production of which would be injurious to the public interest, he must describe with some particularity the nature of the class and the reasons why they should not be disclosed. For this purpose the proper test to be applied is whether the withholding of a document because it belongs, to a particular class is really necessary for the proper functioning of the public service, and the term “public service”, in this context should not be construed narrowly. In considering a claim to Crown privilege in relation to a class of documents, the fact that the documents were communicated in confidence the Crown is a very material consideration, but nevertheless the Court may conclude that the public interest in such confidentiality is outweighed by the public interest that they should be disclosed in the administration of justice.
1167. In Australia too the very same position prevails. It is sufficient to refer to the observations of Gibbs, A.C.J. of the High Court of Australia in Sankey v. Whitlam 21 Aus LR 505, decided in Nov. 1978 at page 542 which we as follows:
What are now equally well established are the respective roles of the Court and of those usually the Crown, who assert Crown privilege. A claim to Crown privilege has no automatic operation; it always remains the function of the Court to determine upon that claim. The claim, supported by whatever material may be thought appropriate to the occasion does no, more than draw to the Court’s attention what is said to be the entitlement to the privilege and provide the Court with material which may assist it in determining whether or not Crown privilege should be accorded. A claim to the privilege is not essential to the invoking of Crown privilege, in cases of defence secrets, matters, of diplomacy or affairs of Government at the highest level, it will often appear readily enough that the balance of the public Interest is against disclosure. It is in these areas that even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is afoot)(sic) a Court, readily recognizing the proffered evidence for what it is, can as many authorities establish of its own motion enjoin its disclosure in Court. Just as a claim is not essential neither is it ever conclusive although, in the areas which I have instanced the Court’s acceptance of the claim may often be no more than a matter of form, It is not conclusive because the function of the Court once it becomes aware of the existence of material to which Crown privilege may apply is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured.
1168. In Canada the prevailing view of law appears to be the same as stated above as can be seen from the decision of the Supreme Court of Canada in Regina v. Snider (1954) 4 DLR 483 at p 480 in which Rand, J. has stated thus:
Once the nature, general or specific as the case may be, of documents or the reasons against its disclosure, are shown, the question for the Court is whether they might, on any rational view, either as to their contents or the fact of their existence be such that the public interest requires that they should not be revealed; if they are capable of sustaining such an interest, and a Minister of the Crown avers its existence, then the Courts must accept his decision. On the other hand, if the facts, as in the example before us, show that, in the ordinary case, no such interest can exist, then such a declaration of the Minister must be taken to have been made under a misapprehension and be disregarded. To eliminate the Courts in a function with which the tradition of the common law has invested them and to hold them subject to any opinion formed, rational or irrational by a member of the Executive to the prejudice, it might be of the lives of private individuals, is not in harmony with the basic conceptions of our polity. But I should add that the consequences of the exclusion of a document for reasons of public interest as if may affect the interest of an accused person are not in question here and no implication is intended as to what they may be.
What is secured by attributing to the Courts this preliminary determination of possible prejudice is protection against Executive encroachments upon the administration of Justice; and in the present trend of government little can be more essential to the maintenance of individual security. In this important matter, to relegate the Courts to such a subservience as is suggested would be to withdraw from them the confidence of independence and judicial appraisal that so far appear to have served well the organization of which we are the heirs. These are considerations which appear to me to follow from the reasoning of the Judicial Committee in Robinson v. South Australia (1931) AC 704.
1169. In the United States of America, the question relating to the limits of executive privilege came up for consideration before the Supreme Court in Mar-bury v. Madison 5 US 137 probably for the first time. In that case William Marbury and three others severally moved the U.S. Supreme Court for a rule of James Madison, Secretary of State for the United States, to show cause as to why a mandamus should not issue commanding him to cause co be delivered to them respectively their several commissions as Justices of the Peace in the District of Columbia. In the affidavit filed in support of the petition they pleaded that Adams the former President had nominated the applicants to the Senate for their advice and consent to be appointed Justices of the Peace; that the Senate advised and consented to the appointments, that commissions in due form were signed by the said President appointing them Justices, that the seal of the United States was in turn affixed to the said commissions and that Madison had declined to cause them to be delivered even though they had acquired the right to the offices. In the course of the proceedings certain questions were put to the Attorney-General Levi Lincoln relating to the Commissions and where they had been kept and on objection being raised to the questions ‘the Court said that if Mr. Lincoln wished time to consider what answers he should make, they would give him time, but they had no doubt he ought to answer. There was nothing confidential to be disclosed. If there had been he was not obliged to answer it; and if he thought that anything was communicated to him in confidence he was not bound to disclose it nor was he obliged to state anything which would criminate himself; but that the fact whether such commissions had been in the office or not, could not be a confidential fact; it is a fact which ail the world have a right to know. If he thought any of the questions improper, he might state his objections’.
1170. In United States v. Burr 25 Fed. Cas 187 (No. 14694) (Cir Ct Va 1807) Chief Justice Marshall ruled:
that the President of the United States may be subpoenaed and examined as a witness and required to produce any paper in his possession, is not controverted…. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the Court from enforcing its production….I can readily conceive that the President might receive a letter which would be improper to exhibit in public, because of the manifest ‘inconvenience of its exposure. The occasion for demanding it ought, in such a case, be very strong, and to be fully shown to the Court before its production could be insisted on.
1171. According to Wigmore the scope of the privilege in America, beyond secrets in the military or international sense is by no means clearly defined. Paragraph 2379 in Volume VIII of Wigmore on ‘Evidence’ reads:
Same: Who determines the Necessity for Secrecy, So far as the privilege has legitimate scope, it raises the question how the existence of the facts which make it applicable is to be determined. If it extends only (as it just limits prescribe) to matters involving international negotiations or military precautions against a foreign enemy, the presence of such matters in the documents or communications sought to be disclosed must by some authority be predetermined, before the privilege can be deemed applicable. If it extends to the larger scope indicated by the English rulings, still the existence of a necessity for secrecy must be in each Instance declared. Who shall make thus determination?
Obviously, and by analogy with other privileges, the, Court (ante, 2193, 2271, 2322; post, 2550). But the Judge (urges the learned incumbent of that office, in Beatson v. Skene) “would be unable to determine it without ascertaining what the document was,” — surely an unavoidable process; “which inquiry,” however, It is added, “cannot take place in private,” — a singular assumption. It would rather seem that the simple and natural process of determination was precisely such a private perusal by the Judge. Is it to be said that even this much of disclosure cannot be trusted? Shall every subordinate in the department have access to the secret, and not the presiding officer of Justice? Cannot the constitutionally coordinate body of Government share the confidence? It is ludicrous to observe a Chief Magistrate, as in Beatson v. Skene, solemnly protesting his incompetence to share the knowledge of a fact which had never been secret at all and had for months been spread abroad by the hundred tongues of scandal.
The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege. The lawful limits of the privilege are extensible beyond any control, if its applicability is left to the determination of the very official whose interest it may be to shield a wrongdoing under the privilege. Both principle and policy demand that the determination of the privilege shall be for the Court; and this has been insisted upon by the highest judicial personages both in England and the United States:
…
Conclusion: The privilege, when recognised, should therefore be subjected to the following limitation:
(1) Any executive or administration regulation purporting in general terms to authorise refusal to disclose official records in a particular department when duly requested as evidence in a court of justice should be deemed void (on the logic of 1355, 2195, ante).
(2) Any statute declaring in general terms that official records are confidential (ante 2378, n.7) 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, ante, 2195a) 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 be appealable and determinative of the privilege.
1172. Writing about the immunity claimed by President Nixon against the demand for disclosure of certain types of documents, Raoul Berger writes in his book entitled ‘Executive Privilege: A Constitutional Myth’ (1974) at page 264 thus:
“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 Klein-dienst’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 excesses bred by the claim of executive privilege. And in practice it has realised Lord Pearce’s pregnant observation: “What a complete lack of common sense a general blanket protection of wide class may yield”. Conway v. Rimmer (1968) 1 All ER 874, 910. The problem will not be met by pruning a branch here and there; the axe must be put to the root of a claim that is altogether without constitutional warrant, leaving it to the good sense of Congress and the people — and, if need be, the courts — to work out an accommodation for such matters as confidential communications between the President and his immediate advisers, excluding any communications with respect to illegal acts. To leave it with the executive branch to decide is to court more of the “horrors” revealed by recent history.
1173. Professor Arthur Schlesinger Jr states: “The secrecy system has become much less a means by which Government protects national security than a means by which the Government safeguards its reputation, dissembles its purposes, buries its mistakes, manipulates its citizens, maximizes its power and corrupts itself” (Quoted by Curt Mathews, St Lewis Post-Despatch Feb. 26, 1973, Section 1-12B P. 1).
1174. Now a few words about the legitimacy of the rule of ‘official secrecy’ may be mentioned. The tendency in all the democratic countries in recent times is to liberalise the restrictions placed on the right of the citizens to know what is happening in the various public offices. The emphasis now is more on the right of a citizen to know than on his ‘need to know’ the contents of official documents. It is pertinent to refer to the practice prevailing in Sweden. In his article entitled ‘Laws on Access to Official Documents’, Donald C. Rowat writes:
When I visited Sweden in 1973 to study its unique system of openness, I was lucky enough to accompany a reporter who worked for the Swedish national press agency, as he made his daily rounds of three Government departments. To my amazement, all incoming and outgoing documents and mail were laid out in a special press room in each department for an hour every morning for reporters to examine. If any reporter wanted further information on a case, he simply walked down the hall to look at the department’s files. No special permission was needed. Such a system of open access is so alien to the tradition of secrecy elsewhere as to be almost unbelievable…. Sweden’s long experience with the principle of openness indicates that it changes the whole spirit in which public business is conducted. It causes a decline in public suspicion and distrust of officials, and this in turn gives them a greater feeling of confidence. More important, it provides a much more solid foundation for public debate, and gives citizens in a democracy a much firmer control over their Government.
(Vide Indian Journal of Public Administration, Vol. XXV, No. 4, October-December, 1979 at pages 990-991) 1175. The position in Sweden appears to represent an extreme case of openness of administrative process.
1176. Max Weber (1864-1920) who was very critical of the rule of official secrecy observed:
Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of “secret sessions”: in so far as it can, it hides its knowledge and actions from criticism. The treasury officials of the Persian Shah have made a secret doctrine of their budgetary Article and even use secret script. The official statistic of Prussia, in general, make public only what cannot do any harm to the intentions of the power-wielding bureaucracy. The tendency towards secrecy in certain administrative fields follows their material nature everywhere that the power interests of the domination structure towards the outside are at stake, whether it is an economic competitor of a private enterprise or a foreign potentially hostile polity, we find secrecy. The pure interest of the bureaucracy in power, however, is efficacious far beyond those areas where purely functional interests make for secrecy. The concept of the “Official Secret” is the specific invention of the bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude, which cannot be substantially justified beyond these specifically qualified areas. In facing a Parliament, the bureaucracy, out of a sure power instinct, fights every attempt of the Parliament to gain knowledge by means of its own experts or from interest groups. The so-called right of parliamentary investigation is one of the means by which Parliament seeks such knowledge. Bureaucracy naturally welcomes a poorly informed and hence a powerless Parliament at least in so far as ignorance somehow agrees with the bureaucracy’s interests’.
(H.H. Gerth and C. Wright Mills (trans.), from Max Weber, Essays in Sociology, London, Routledge and Kegan Paul, 1948, pp. 233-4) By courtesy of Dr. S.R. Maheshwari).
1177. In India many intellectuals have always thought that as far as possible there should be openness in administration. Opposing the Official Secrets (Amendment) Bill which came up for discussion in the Imperial Legislative Assembly in March, 1903, Gopal Krishna Gokhale pleaded:
The proper and only remedy worthy of the British Government is not to gag newspapers as proposed in this Bill but to discourage the issue of, confidential circulars which seek to take away in the dark what has been promised again and again in Acts of Parliament, the Proclamations of Sovereigns and the responsible utterances of successive Viceroys. From the standpoint of the rulers, no less than of the ruled, it will be most unfortunate if Indian papers were thus debarred from writing about matters which agitate the Indian community most. What happened, for instance, last year when those circulars were published? For some time before their publication, the air was thick with the rumour that Government had issued orders to shut cut Indians from all posts in the Railways Department, carrying a salary of Rs. 30 and upwards a month. It was impossible to believe a statement of this kind, but it was not possible to contradict it effectively when it was practically on every tongue. The damage done to the prestige of the Government was considerable and it was only when the circulars were published that the exact position came to be understood. The circulars, as they stood, were bad enough in all conscience but they were not so bad as the public had believed them to be. What was laid down in them was not that Indians were to be shut out from all appointments higher than Rs. 30 a month but that Eurasians and Europeans were to have, so far as practicable, a preference in making appointments to such posts. The fear that such lamentable departures from the avowed policy of Government might be dragged into the light of day, acts at present as an effective check on the adoption of unjust measures, and I think it will have a disastrous effect on the course of administration; if this check were to be done away with and nothing better substituted in its place. (Abstract of the Proceedings of the Council of the Governor General of India Assembled for the purpose of Making Laws and Regulations, Vol. XLII, 1903, pages 280-281).
1178. Saiyad Muhammad and Asutosh Mukherjee also opposed the Bill. Those speeches gave ample support to the movement which stood for the freedom of the press in India. Few persons have the vision of these great leaders. The need for making access to information about the activities of Government more liberal has been explained by Dr. S.R. Maheshwari in his book entitled “Open Government in India” (1981) at pp. 05-96 thus:
Administrative India puts the greatest weight on keeping happenings within 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 behaviour which is apt to degenerate into arbitrarinees(sic) 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 policy makers is of a selective nature, and even the policy-makers and their advisors may deliberately suppress certain viewpoints 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.
1179. It may be necessary to deal with the question of official secrecy in greater detail in a case where the constitutionality of the claim for official secrecy, independently of the power of the Court to order discovery of official documents in judicial proceedings, arises for consideration. We are concerned in this case with the power of the Court to direct the disclosure of official documents in Judicial proceedings.
1180. We shall now turn to the Indian law, In the State of Punjab v. Sodhi Sukhdev Singh , a Constitution Bench of this Court had occasion to examine the limits of the privilege of the Government in the light of Sections 123 and 162 of the Indian Evidence Act, 1872. Section 123 reads:
123. 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.
Section 162 reads:
162. 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 it it 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.
If for such a purpose it is necessary to cause any 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 direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code, 1860 (45 of 1860).
1181. The decision in Sodhi Sukhdev Singh’s case (supra) was rendered in the light of the development of the law on the above question in England up to the year 1960. Gajendra-gadkar, J. (as he then was) speaking for the majority observed in that case at pages 393-395 (of SCR) : (at pp. 505, 506 of AIR) thus:
Thus our conclusion 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 authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.
1182. 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. We are not Impressed by Mr. Seervai’s argument that the Act could not have intended that the head of the department would permit the production of a document which belongs to the noxious class. In our opinion, it is quite conceivable that even in regard to a document falling within the class of documents relating to affairs of State the head of the department may legitimately take the view that its disclosure would not cause injury to public interest. Take for instance the case of a document which came into existence quite some time before its production is called for in litigation; it is not unlikely that the head of the department may feel that though the character of the document may theoretically justify his refusing to permit Its production, at the time when its production is claimed no public injury is likely to be caused. It is also possible that the head of the department may feel that the injury to public interest which the disclosure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the direct injury to the cause of justice which may result from its non-production he may decide to permit its production. In exercising his discretion under Section 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. That is why we think it is not unreasonable to hold that Section 123 gives discretion to the head of the department to permit the production of a document even though its production may theoretically lead to some kind of injury to public interest. While construing Sections 123 and 162, it would be irrelevant to consider why the enquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a matter of policy on which the Court does not and should not generally express any opinion.
1183. In this connection it is necessary to and that the nature and scope of the enquiry which, in our opinion, it is competent to the court to hold under Section 162 would remain substantially the same whether we accept the wider or the narrower interpretation of the expression “affairs of State”. In the former case the Court will decide whether the document falls in the class of innocuous or noxiow(sic) documents; if it finds that the document belongs to the innocuous class it will direct its production; if it finds that the document belongs to the noxious class it will leave it to the discretion of the head of the department whether to permit his production or not. Even on the narrow construction of the expression “affairs of State” the Court will determine its character in the first instance; if it holds that it does not fall within the noxious claim which alone is included in the relevant expression on this view an order for its production will follow; if the finding is that it belongs to the noxious class the question about its production will be left to the discretion of the head of the department. We have already stated how three views are possible on this point. In our opinion, Mr. Seervai’s contention which adopts one extreme position ignores the effect of Section 162, whereas the contrary position which is also extreme in character ignores the provisions of Section 123. The view, which we are disposed to take about the authority and jurisdiction of the Court in such matters is based on a harmonious construction of Section 123 and Section 162 read together; it recognises the power conferred on the Court by Clause (1) of Section 162, and also gives due effect to the discretion vested in the head of the department by Section 123.”
1184. A similar question arose again before this Court in State of U.P. v. Raj Narairi , Ray, C.J. speaking for himself and Alagiriswamy, Sarkaria and Untwalia, JJ. observed at pages 348-349 (of SCR): (at p. 875 of AIR) thus:
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 outweigh’s 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 contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v. Home Secretary (1973) AC 388 at p. 405). To illusirate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest” the documents are to be withheld. (See Merricks v. Nott Bower (1964) 1 All ER 717.
It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. 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. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh’s case .
In his concurring judgment, Mathew, J. said at pages 359 and 361 (of 1975-3 SCR) : (at pp. 883, 884 of AIR 1975 SC) thus:
When a question of national security is involved, the court may not be the proper forum to weigh the matter and that is the reason why a Minister’s certificate is taken as conclusive. “Those who are responsible for the national security must be the sole Judges of what national security requires.”
As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. But the executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements. One such element is the administration of justice. The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knows what is best for the citizen. 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 Been 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 power reserved to the court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of Government for which the Minister speaks do not exhaust the whole public interest. Another aspect of that Interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspects of public interest. While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few ‘matters of public interest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of Ministers of officials bound by oath of secrecy.
…
There was some controversy as to whether the Court can inspect the document for the purpose of coming to the conclusion whether the document relates to affairs^ of State. In Sodhi Sukhdev Singh’s case Court has said that the court has no power to inspect the document. In the subsequent case (Amar Chand Butail v. Union of India this Court held that the normal method of claiming privilege was by an affidavit sworn by the head of the department, and that, if no proper affidavit, was filed the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to affairs of State. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.
In England, it is now settled by the decision in Con way v. Rimmer (1968) 1 All ER 874 that there is residual power in court to decide whether the disclosure of a document is in the interest of the public and for that purpose, if necessary, to inspect the document, and that the statement of the head of the department that the disclosure would injure public interest is not final.
1185. It seems that by this decision the law in India was brought in line with the decision of the House of Lords in Conway’s case (1968) 1 All ER 874 (supra).
1186. After hearing the arguments on the question of privilege, this Court directed the Government to submit the documents in respect of which privilege was claimed for its inspection. Those documents included the correspondence between the Chief Justice of the High Court of Delhi, the Chief Justice of India and the Minister of Law & Justice and some official notings relating to the question -of reappointment of Shri S.N. Kumar as a Judge of the High Court of Delhi.
1187. The above order was made as the documents in question had no concern with either the security of the State or with the diplomatic relations between our country and any foreign country. They no doubt related to a ‘high level’ appointment, but it was felt by us that that fact by itself was not sufficient in the circumstances of the case to prevent the Court from directing the Government to produce the documents for its inspection before deciding the question of discovery.
1188. The question whether these documents should be allowed to be disclosed as prayed for by the parties concerned, depended upon our view on the question whether such disclosure would subserve the public interests. It is accepted on all hands that the documents in question were ‘high level’ documents relating to the appointment of a Judge of a High Court and any order to be made ph the question of disclosure had to be made after considering the pros and cons of all relevant matters. Having inspected the documents the Court had to consider whether their disclosure would create or fan ill-informed or captious, public or political criticism or whether the business of the Government would be exposed to the gaze of those ready to criticise without adequate knowledge of the background or perhaps some axe to grind, as observed by Lord Reid in Conway v. Rimmer (1968) 1 All ER 874 (supra). The wise words of Lord Keith in Burmah Oil Co.’s case (1979) 3 All ER 700 (supra) that the public interest might ‘demand, though no doubt only in a very limited number of cases, that the inner working of government should be exposed to public gaze, and there may be some, who would regard this as likely to lead, not to captious or ill-informed criticism, but to criticism calculated to improve the nature of that working as affecting the individual citizen’ also had to be kept in view by the Court while dealing with this case. The Court had to strike a balance between the public interest in the proper functioning of the public service and the public interest in the administration of justice. The Court also considered whether the disclosure would lead to any other further consequence of anybody taking any further action on the basis of these documents. The ruling in Rid-dick v. Thames Board Mills Ltd. (1977) 3 WLR 63, was also examined. In that case, Lord Denning has observed (at page 75) thus:
In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose. The principle was stated in a work of the highest authority 93 years ago by Bray J., Bray on Discovery, Ist Edn. (1885), p. 238:
A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit:…nor to use them or copies of them for any collateral object….If necessary an undertaking to that effect will be made a condition of granting an order….
Since that time such an undertaking has always been implied, as Jenkins J. said in Alterskye v. Scott (1948) 1 All ER 469, 471. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose. The modern authorities are well discussed 03 Talbot, J. in Distillery Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. (1975) QB 613, 621 and I would accept all he Bays, particularly as to the weighing of the public interests involved: see p. 625.
1189. Ours is an open society which has a government of the people, which has to be run according to the Constitution and the laws. The expression ‘affairs of State’ should, therefore, receive a very narrow meaning. Any claim for interpreting it with a wider connotation may expose Section 123 of the Evidence Act to be challenged as being unconstitutional.
1190. In this case the questions involved are: (1) whether there was divergence of opinion between the opinion of the Chief Justice of the Delhi High Court and the opinion of the Chief Justice of India (2) Whether the opinions expressed by them were relevant for deciding the question of fitness of Shri S.N. Kumar for appointment as additional Judge or permanent Judge of the High Court of Delhi (3) Whether the consultations made under Article 217(1) were proper and (4) Whether the decision of the President not to appoint Shri S.N. Kumar as an additional Judge or permanent Judge could be characterised as perverse? The pleadings in the case naturally could not give us a complete: picture in view of the secrecy involved In the process of recommendation and the claim of privilege made on behalf of the Government. The standing of the parties concerned to question the decision of the President was also raised apart from the question of non-justifiability of the issue itself. Since Shri S.N. Kumar himself took active interest in the litigation and asked for relief, the absence of locus standi of Shri V.M. Tarkunde (the petitioner) did not matter much. On the question of justiciability, we felt that an additional Judge who was not reappointed could move the Court for a direction to the Government to consider the question of his reappointment in a fair way for the reasons recorded elsewhere in this judgment. We felt that the issue involved the performance of a duty which was judicially identified and its breach was capable of judicial determination and that it was possible to grant relief, though in a limited way, if circumstances warranted it. When we considered the contentions of the parties against the background of the facts and the important questions of constitutional law and their application involved in this case, we felt that a decision not to direct disclosure of the documents would result in graver public prejudice than the decision to direct such disclosure and that the public interest involved in the administration of justice should prevail over the public interest of the public service in the peculiar circumstances of the case. We also felt that in the circumstances of this case if disclosure was not ordered, there would be room for many undesirable conjectures and surmises about the entire process of consultation under Article 217(1). Accordingly by our order made earlier in the course of these proceedings we directed the disclosure of the documents after carefully considering all aspects of the case including the weighty reasons of our learned brother Fazal Ali, J. to the contrary.
PART IX 1191. The next important and delicate question for consideration is whether the non-appointment of Shri S.N. Kumar as an additional Judge even though the arrears of work in the High Court of Delhi justified the appointment of more number of Judges is legal and proper. Article 217(1) of the Constitution which empowers the President to appoint Judges of High Courts does not make any distinction between the tests that should be applied in the case of appointment of a permanent Judge and the tests to be applied in the case of the appointment of an additional Judge, as to the fitness of the person to be appointed. The same tests have to be applied even when a person who has already been appointed as an additional Judge is to be considered for appointment as a permanent Judge or for appointment as an additional Judge for another period although as already mentioned an additional Judge has two factors in his favour which have to be taken into consideration by the appointing authority in the context of the manner in which Article 224 of the Constitution has been operated all these days. Since the appointment in question is to the post of a Judge, questions of integrity and of character of the person proposed for the post do assume large importance in taking a decision. The appointing authority cannot merely act on mere absence of evidence of lack of integrity or character of the person concerned. The appointing authority should on the other hand feel positively assured about the integrity and good character of such person. Having regard to the importance of the office of a Judge of a High Court, the constitutional and legal immunities that a Judge enjoys and the need for infusing confidence in the mind of the people who approach courts seeking impartial justice, the appointing authority has to take sometimes hard decisions and it is likely that in that process some person who is really honest may not be appointed on account of some doubt expressed by one or the other amongst the functionaries who have to be consulted under Article 217(1) of the Constitution or on account of some other relevant material that may be available to the appointing authority. Hence if a person is not appointed as a Judge after the usual process of consultation is over it does not necessarily mean that in fact he lacks integrity or character. If the matter had been placed in the above light in this case, perhaps the task of the Court would have been less onerous. But in the course of the arguments, serious allegations of political vendetta, conspiracy, malice, fraud etc. were made against the Prime Minister, Law Minister and the Chief Justice of the Delhi High Court. A deeper probe into the case has, therefore, become necessary.
1192. The first submission was that as there was an uncontradicted news item appearing in a newspaper according to which the Prime Minister had expressed dissatisfaction with the Judges appointed by the Government which was in office prior to her becoming the Prime Minister in Jan., 1980, the action taken in respect of Shri S.N. Kumar who had been appointed by the previous Government was traceable to the said reaction of the Prime Minister. It is difficult to accept this submission because there were about sixty such additional Judges appointed by the previous Government and out of them It is seen that only four — one of the Allahabad High Court, one of the Rajasthan High Court and two of the Delhi High Court including the petitioner have not been re-appointed as additional Judges. If the policy was not to appoint such Judges, as a matter of policy, in the ease of others also a similar decision would have been taken. But that has not been the case. As can be scan from the list of Judges of the High Courts as on January 1, 1980, there were 12 additional Judges in the Delhi High Court. Of them one died in 1960 and nine (including Mr. Justice Wad) had been either made permanent or continued as additional Judges by the present Government. Only two i.e. Shri S.N. Kumar and Shri O.N. Vohra have not been continued. Hence it is difficult to draw an inference that it is on account of any political ground that Shri S.N. Kumar has not been continued. This argument that the Prime Minister took a hostile attitude towards Shri S.N. Kumar on account of political ground is inconsistent with another argument urged before us, namely, that the Law Minister had tried to mislead the Prime Minister when he wrote on March 3, 1981 that “the letter of the Chief Justice of Delhi High Court makes a serious complaint against the integrity of Shri S.N. Kumar and I deliberately avoid going into the merits or the details at this stage as I am proposing a short extension in his tenure presently”. The argument is that even though the Chief Justice of the Delhi High Court had not made any serious complaint, the Minister for Law had stated so in order to mislead the Prime Minister. Whether factually he had tried to mislead her or not will be dealt with later. But the statement that he was misleading the Prime Minister who, according to the learned Counsel for Shri S.N. Kumar, had made up her mind to take some action prejudicial to Shri S.N. Kumar appears to be incongruous. Perhaps it would have been acceptable if the case was that the Prime Minister was favourably disposed towards Shri S.N. Kumar but the Law Minister had tried to mislead her.
1193. The next allegation is that the Chief Justice of the Delhi High Court and the Minister for Law had entered into a conspiracy to do harm to Shri S.N. Kumar. This aspect of the matter also will be discussed later on. But this contention is, however, inconsistent with another argument that the Law Minister had tried to put undue pressure on the Chief Justice of the Delhi High Court to furnish some particulars which were against Shri S.N. Kumar and secured the letter of May 7, 1981. Conspiracy presupposes the existence of a voluntary combination of two or more persons to achieve some unlawful object or to bring about some result injurious to some other person or persons. If there were only two in a given case and one of them had exerted pressure on the other to secure some information it would not be a case of conspiracy but a case of extortion of some information by one from the other. The preceding discussion shows that there is inherent inconsistency in some of the contentions which are urged before us.
1194. In the instant case, we are concerned with the Chief Justice of India, the Chief Justice of the Delhi High Court and the Law Minister each of whom is holding a very high office and each of whom is entrusted with high responsibilities. Each one of them has to express his candid opinion on the matter in issue. It is not unknown that on the same matter any two honest persons may have two different opinions. There is no allegation in the case that either the Chief Justice of the Delhi High Court or the Law Minister had any personal ill-will against Shri S.N. Kumar. There is no allegation also to the effect that the Chief Justice of the Delhi High Court had anything to gain by colluding with the Law Minister. He had been appointed as the Chief Justice of the Delhi High Court before Feb. 19, 1981 on which date he wrote the first letter expressing his opinion against the re-appointment of Shri S.N. Kumar. Further the Chief Justice of the Delhi High Court is not impleaded as a respondent in the case. It is wholly improper and opposed to all canons of judicial process to make any comment against him without giving an opportunity to defend himself. Under the Constitution, he is under a duty to express his opinion on the question of appointment of a Judge in the High Court of Delhi. Such opinion should be about all relevant aspects including the reputation and integrity of the person concerned. In discharge of his constitutional obligation, the Chief Justice of the Delhi High Court wrote to the Law Minister on Feb. 19, 1981 as follows:
SECRET & CONFIDENTIAL CHIEF JUSTICE HIGH COURT OF DELHI D.O. No. 275-HCJ/PPS New Delhi, the 19th February, 1981 My dear Shiv Shankerji, Mr. Justice S.N. Kumar was appointed an Additional Judge of this Court for a period of two years , vide Notification No. 50/8/78-Jus., dated 6-3-1979, issued by the Government of India, Ministry of Law, Justice & Company Affairs (Department of Justice). He assumed the charge of his office in the afternoon of March 7, 1979.
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. There have, however, 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 members 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.
There is one other factor which has been brought to my notice. It is rather unfortunate 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.
In the above circumstances, it is my very painful duty not to recommend an extension for Justice Kumar. You may, however, examine the matter at your end and take such steps as you think proper.
With regards, Yours sincerely, Sd/-
(PRAKASH NARAIN) Shri P. Shiv Shanker, Minister of Law, Justice And Company Affairs, Government of India, Shastri Bhavan, New Delhi.
1195. A reading of the aforesaid letter shows that it was being written in anguish and with a feeling of sincerity. It is not shown that the Chief Justice of the Delhi High Court had made any statement which was false to his knowledge, or which he did not believe to be true or which he believed to be untrue. A Chief Justice of a High Court has no machinery to investigate into complaints but he has got to state about the fitness of the person to be appointed as a Judge. It is seen that he has relied on the statements of some of his colleagues and some of the members of the Bar. He has no doubt not given their names. It is not also possible to expect him to give out their names having regard to the constraints of law which applies to persons who make such statements. It is significant that even the Chief Justice of India has not given the names of Judges and of lawyers who were consulted by him as stated in his letter dated May 22, 1981. There is no reason to disbelieve the statement of the Chief Justice of the Delhi High Court that he had heard some statements which suggested that the integrity of Shri S.N. Kumar was in doubt. The said statement may be in fact not true. We cannot go into the correctness or otherwise of those statements in proceedings of this character. It is enough to state that it is not shown that the Chief Justice of the Delhi High Court had not heard such statements at all. In this situation if the Chief Justice of the Delhi High Court had conveyed whatever he had heard and had not recommended continuance of Shri S.N. Kumar, he cannot be considered as having committed any act of impropriety even though Shri Kumar had not in fact done anything which was improper as a Judge. If Shri Kumar is a victim of false rumour he deserves sympathy but it is not open to condemn the action of the Chief Justice of the Delhi High Court which he had to discharge in the public interest and true to his oath of office.
1196. The next aspect of this part of the case relates to the question whether there was full and proper consultation with the functionaries mentioned in Article 217(1) of the Constitution. In the case of the High Court of Delhi which is situated in the Union Territory of Delhi, consultation with the Governor does not arise (vide SECTION 4 of the Delhi High Court Act, 1966). The only two authorities who have to be consulted by the President are the Chief Justice of the Delhi High Court and the Chief Justice of India. The process of consultation referred to in Article 217(1) requires that the authorities concerned should be given sufficient information and also sufficient opportunity to furnish their opinion. The question whether such information was furnished and whether such opportunity was given depends upon the facts of each case. In the instant case the letter dated Feb. 19, 1981 written by the Chief Justice of the Delhi High Court was made available to the Chief Justice of India. On that the Chief Justice of India observed on March 3, 1981: “I would like to look carefully into the charges against Shri S.N. Kumar. The letter of the Delhi Chief Justice dated Feb. 19, 1981 seems to me too vague to accept that Shri Kumar lacks integrity.” The Chief Justice of India, however, recommended that Shri S.N. Kumar may be appointed for a period of six months so that he could enquire into the matter in the meanwhile. On the same date i.e. March 3, 1981, the Law Minister put up a note for the consideration of the Prime Minister suggesting that Shri S.N. Kumar may be appointed as an additional Judge for three months so that a final decision could be taken within that period. It is true that the Law Minister has stated in this note that the Chief Justice of the Delhi High Court had made ‘serious complaint’ against the integrity of Shri S.N. Kumar. The word ‘serious’ according to the Shorter Oxford Dictionary means ‘requiring earnest thought, consideration or application’. Any remark against the reputation or integrity of a person to be appointed as a Judge of a High Court is a matter which requires earnest consideration. It is, therefore, difficult to hold that the Law Minister had made any misrepresentation to the Prime Minister in recording the aforesaid note.
1197. After Shri S.N. Kumar was re-appointed as an additional Judge with effect from March 7, 1981. the Law Minister wrote on Mar. 9, 1981 to the Chief Justice of the Delhi High Court bringing to his notice the note of the Chief Justice of India made on Mar. 3, 1881 that the letter of the Delhi Chief Justice dated Feb., 19, 1981 seemed to him too vague to accept that Shri Kumar lacked integrity and added:
2. In the light of these observations of the Chief Justice of India, I shall be grateful for your further comments on the question of continuance or otherwise of Shri Justice S.N. Kumar, His term expires on 6-6-1981 and I would be grateful if your comments reach me by 15-4-1981.
1198. It is seen from the letter dated Mar. 28, 1981 written by the Delhi Chief Justice to the Chief Justice of India that the Chief Justice of India had also written a letter dated Mar. 14, 1981 (which is not placed before us) to the Delhi Chief Justice about the same subject and that the Chief Justice of the Delhi High Court had met the Chief Justice of India on Mar. 26, 1961 (this date is mentioned in the letter of the Chief Justice of India dated May 22, 1981 which will be referred to later on). After that meeting the Chief Justice of the Delhi High Court wrote to the Chief Justice of India the letter dated March 28. 1981. referred to above. It reads:
SECRET CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI D. O. No. 292-HCJ/PPS March 28, 1981 My dear Chief Justice, I am in receipt of your letter dated 14th March, 1981 with regard to Mr. Justice S.N. Kumar. Since then I have also had an opportunity to discuss this delicate matter with you.
There were three points mentioned in my D. O. No. 275-HCJ/PPS dated 19th February, 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 figure of disposal in the same period of my other two colleagues whose cases for re-appointment are under consideration.
With warm regards, Yours sincerely, Sd/-
(PRAKASH NARAIN) End: 1 Hon’ble Mr. Justice Y. V. Chandrachud, Chief Justice of India, 5, Krishna Menon Marg, New Delhi, 1199. Along with this letter, a statement of cases was sent as stated in its last paragraph. On the same date i.e. Mar. 28, 1981 the Delhi Chief Justice wrote to the Law Minister enclosing a copy of the letter written by him to the Chief Justice of India. That letter runs as under:
SECRET CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI D. O. No. 293-HCJ/PPS March 28, 1981 My dear Shiv Shankerji, I am in receipt of your D. O. No, 50/2/ 81-Jus, dated 19th March 1981.
I have received a letter from the Chief Justice of India with regard to my observations and recommendations made in my D. O. No. 275-HCJ/PPS dated 19th Feb., 1981, addressed to you, a copy of which was sent to the Chief Justice of India, asking me to furnish him with “details and concrete facts in regard to the allegations against Justice Kumar.” I have since had an opportunity to discuss the entire matter in detail with the Chief Justice of India. After the discussion I have addressed a letter to the Chief Justice, a copy of which is enclosed. 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.
With regards, Yours sincerely.
Sd/-
(PRAKASH NARAIN) End: 1 Shri P. Shiv Shanker, Minister of Law, Justice And Company Affairs, Government of India, Shastri Bhavan, New Delhi.
1200. On April 15, 1981, the Law Minister wrote to the Chief Justice of the Delhi High Court asking for any material which provided the basis for his recommendation. It reads;
Confidential D. O. No. 50/2/81-Jus April 15. 1981 My dear Chief Justice, I am to hand your d. o. letter No. 293-HCJ/PPS dated 28th Mar., 1981 and a copy of your letter to the Chief Justice of India bearing the same date, regarding Shri Justice S.N. Kumar, Additional Judge, Delhi High Court. The Chief Justice of India had felt that the reasons given in your earlier letter were vague and wanted more concrete particulars. 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 and recommended that he may not be continued. 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. I would, therefore, be grateful, if it be furnished to me at the earliest.
2. I would also request you to send me your comments promised in your letter No. 268-HCJ/PPS dated 12th November, 1980 on the complaints of Shri Sabir Hussain.
3. From the statement of disposal of cases sent by you, it is observed that it is really in the second half of 1980 that there has been a sharp drop in the disposals of Justice Kumar. Could there be any special reason for this? I may please be informed whether the nature of cases assigned to Justice Kumar, in the terms of time normally required for their disposal, was roughly similar to the nature of cases disposed of by Justice Vohra and Justice Wad.
4. I shall be grateful for an early reply.
With regards, Yours sincerely, Sd/-
(P. Shiv Shanker) Shri Justice Prakash Narain, Chief Justice, Delhi High Court, New Delhi.
1201. In reply to this letter the Chief Justice of the Delhi High Court wrote on May 7, 1981 a letter by way of reply which has given rise to some serious controversy in this case. That letter reads:
SECRET (For Personal Attention Only) CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI D. O. No. 298-HCJ/PPS New Delhi, the 7th May, 1981 Dear Mr. Minister, I am in receipt of your D. O. No. 50/2/ 81-Jus., dated 15th April, 1981.
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 far me to conclude that Justice Kumar’s integrity was not above board, I give below some facts, In the first half of 1980, Justice Kumar was sitting singly and was doing mostly Original Side matters but also some Appellate Side matters. Chance remarks came to my knowledge about his conduct in Court as well as about his integrity. Somewhere early in May, 1980, one of my colleagues met me and said that he was rather perturbed about 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. I had not paid much attention to the earlier reports but when this was brought to my notice, and I was at that time not the Chief Justice. I thought to myself that after the summer vacations, to save Justice. Kumar from any embarrassment, he should be put on a jurisdiction other than original jurisdiction. Therefore, when as Acting Chief Justice I constituted the Benches for second half of 1960 I put Justice Kumar in a Division Bench to sit on the Appellate Side and Writ Jurisdiction. In my view this was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge, Surprisingly enough, Justice Kumar did not release the original suits, regarding which allegations had been made, from his board and continued to deal with these suits even in the second half of 1980. These suits were Suit No. 1489 of 1979, Suit No. 1417 of 1978 and Suit No. 1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt. Ltd. against the New India Assurance Co. Ltd. In August, 1980. the same colleague of mine who talked to me earlier and another colleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis-a-vis the aforesaid cases and some others. Since I was only acting as Chief Justice at that time, I did not want to take any precipitate action. I, however, made discreet inquiries from some of the leading counsel and they in strict confidence supported the allegations. This made me look into the matter more carefully when to my astonishment I 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. There is fairly a long list of these cases. In some of these the parties involved were rich and influential including some former princes. After I was appointed Chief Justice early in January, 1981. I looked into this matter a little more deeply and made further inquiries. Some of the lawyers were non-committal and understandably so. Others, however, asserted with some force that Justice Kumar’s reputation was not above board. I talked to some of my other colleagues besides the two who had earlier spoken to me. They also said that unconfirmed reports have been circulating in the Bar which were not very complimentary to Justice Kumar. This made me conclude that the reputation for integrity of Justice Kumar was not what should be for Judge of the High Court. To my mind, reputation of integrity is just as important as a person actually being above-board.
With regard to the complaint of Mr. Sabir Hussain. Advocate, I had looked into the relevant files besides showing the complaint to Justice Kumar. My colleague had of course, no comments to make nor could I ask him for the same. The litigation referred to in Mr. Sabir Hussain’s complaint ended by the suit being decided in his favour as is apparent from the judgment and decree in. Suit No. 550 of 1975. The learned Judge did not, however, give his decision on all the prayers or with regard to all the parties to the suit. From the record I could not find any evidence of alleged partiality. It is correct that the learned Judge took over six months in pronouncing judgment after the case was closed. I would not like to comment further on the merits of the decision because that is a judicial matter. But it is correct that the judgment does not deal with all the matters raused in the suit or regarding which evidence was adduced. It is also correct that all the evidence adduced has not been discussed in the judgment. The inferences made by Mr. Sabir Hussain from such a judgment are possible but it is a matter which should only be commented upon judicially.
With regard to the disposal statement for the second half of 1980, I may mention that no special type of work was allocated to the Bench of which Mr. Justice Kumar was a member. The Bench disposed of eleven main cases and 7 Misc. petitions. Normally when matters are heard by a Division Bench, alternate judgments are written by the two members of the Bench. Credit, however, is given to both the Judges for the total disposal by the Bench. To clarify, if 18 matters were disposed of by the Bench, 9 judgments would normally be written by each Judge in regular matters but each Judge will get credit of 18. So far as motion matters are concerned. short orders admitting or dismissing a case are dictated in open Court by the senior of the two Judges. No credit is given for disposal of motion matters.
Except for the Division Bench doing Tax matters or Criminal Appeals, other Division Benches have writ matters, L. P. As, and other types of civil matters listed before them. There is no special type of work assigned to any particular Judge or Bench in our High Court. Normally the distribution of Work is in the broad categories of criminal work tax work and civil matters. Sometimes, depending upon the special aptitude of a Judge, one particular type of cases are listed before that Judge in greater number.
There was no special distinction between the work that was being done by the Bench of which Justice Kumar was a member and the Benches of which Justice Vohra and Justice Wad were the members. This would be evident from a reading of the classification of cases disposed of by the various Benches which are all broadly mentioned as Main Gases in the statement of disposal sent by me to Hon’ble the Chief Justice, I enclose for your ready reference the break up of the Main Cases. You will notice that the Division Bench of which Justice Wad was a member heard and disposed of 11 Writ Petitions. 79 Letters Patent Appeals, 11 Sales Tax References, 1 Civil Misc. (Main), 2 Criminal Contempt Petitions and 5 Income-tax References besides 7 Misc. Petitions. The Bench of which Justice Vohra was a member disposed of 8 Regular First Appeals, 55 First Appeals from Orders, 3 Company Appeals, 10 Civil Writ Petitions, 7 Criminal Appeals, 18 Letters Patent Appeals, 3 Civil Revisions etc. etc. The Bench of which Justice Kumar was a member disposed of 1 Letters Patent Appeal, 9 Civil Writ Petitions and 1 First Appeal from Order besides 7 Misc. Petitions.
In my original letter to you I had mentioned about other complaints regarding Justice Kumar besides the complaints about integrity. These pertain to his conduct with counsel in Court. Generally speaking an incident in Court is nothing more than exchange of, at the worst, hot words. Unfortunately incidents in Justice Kumar’s Court have been occurring more frequently than in others. In some cases I am told, and in one I have verified, a senior counsel had to go to the extent of recording the incident and making his comments about unfair conduct of the Judge on affidavit which was placed on the record of the case. It created an unhappy situation.
In view of what I have written above and my talks with you, it is now for the Government to see whether it would like Justice Kumar to continue-as a Judge of the Delhi High Court. As far as I am concerned, my views have already been expressed in my letters dated 19th February. 1961.
With regards.
Yours sincerely, Sd/-
(PRAKASH NARAIN) Encl: 3 Shri P. Shiv Shanker, Minister of Law, Justice & Co. Affairs, Government of India, New Delhi 1202. Three statements are enclosed to this letter showing the number of cases disposed of by Shri S.B. Wad, Shri O.N. Vohra and Shri S.N. Kumar. After the above letter of May 7, 1981 was received, the Law Minister recorded a note on May 19, 1981 asking for the opinion of the Secretary (Justice) which reads as follows:
Last evening I spoke to the Chief Justice of Delhi High Court for an early reply to my letter dated …. in view of the fact that the time left for the decision of cases of S/Shri Justice Vohra, S.N. Kumar and S.B. Wad was very short. He assured me that he would send his reply within a day or two and said that the matter necessarily involved a little time as he had to wade through the proceedings of the “Kissa Kursi Ka” case and make a few enquiries. He requested me that his reply may be kept secret for personal attention only, as he desired in his earlier letter dated 7th May, 1981. In fact, I recall that before issuance of the letter dated 7th May, 1981, he informed me to treat it secret though at that moment I did not try to probe the implications and details of his request. When he made the request now, for keeping the letter secret, I asked him as to what exactly he meant by ‘secret for personal attention only’ as indicated in the 7th May, 1981 letter. In the context during the discussions he requested that his letter may be avoided from being brought to the notice of CJI for the following reasons:
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 19-2-1081 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 his 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 conveyed to him the feelings of the C. J. I.
He categorically informed me that he could not afford to spoil his relations with the CJI 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 is 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 CJI.
In view of the above, Secretary (J) may examine immediately as to whether it is inevitable to furnish the letters of the Chief Justice of Delhi to the CJI for his comments or would it be sufficient if on the basis of his previous endorsements, we address a letter to the CJI for his advice, making him available, if need be the material available with us including the purport of the IB report. In the latter case drafts may be put up.
Sd/-
(P. Shiv Shankar) 19-5-81 Secretary (Justice) 1203. Thereafter on May 21, 1981, the Law Minister wrote to the Chief Justice of India requesting him to give his opinion on the continuance of Shri S.N. Kumar. It has to be mentioned here that by then an interim order had been passed by this Court asking the Union Government to take a decision on the continuance of Shri S.N. Kumar ten days before the expiry of his tenure as Additional Judge which was to come to an end on June 6, 1981 i.e. on or before May 27, 1981. It is admitted that the letter of May 7, 1981 written by the Delhi Chief Justice to the Law Minister was not sent to the Chief Justice of India along with the letter of May 21, 1981. The letter of Feb. 19, 1981 referred to above was, however, sent But the letter of May 21, 1981 contained a reference to the meeting which had taken place between the Delhi Chief Justice and the Chief Justice of India in para 3 thereof. The letter of May 21, 1981 reads:
D. O. No. 50/2/81-Jus May 21, 1981 My in his letter dated 19th February, 1981 the Chief Justice of the Delhi High Court (copy enclosed) had recommended that Justice Kumar may not be given any extension. By another letter of the same date he had recommended an extension of two years for Justice Wad.
2. You had advised on 3rd March, 1981 as below:
I have recommended, for reasons mentioned in the concerned file, that Shri O. N. Vohra’s term should be extended by six months. Shri Vohra is senior to Shri S.N. Kumar and Shri S.B. Wad. In the interests of propriety, the term of these two Judges should also be extended by six months.
I would like to look carefully into the charges against Shri S.N. Kumar. The letters of the Delhi Chief Justice dated February 19, 1981 seem to be too vague to accept that Shri Kumar lacks integrity.
True, that there are no complaints against Shri Wad. But, since he is junior to the other two Judges, his term ought not to be extended, longer than that of the other two. That is to say, Shri O. N. Vohra, Shri S.N. Kumar and Shri S.B. Wad should all be extended by six months.
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. When you had tendered your advice dated 3rd Mar., 1981 the following I. B. report regarding Shri S.N. Kumar had been brought to your notice: —
(Extract from I. B. report omitted) An extract of a further report received is enclosed.
5. You will please see that in your advice dated 3rd Mar., 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 and Justice S.B. Wad.
With regards, Yours Sd/-
(P. Shiv Shanker) Shri Y. V. Chandrachud, Chief Justice of India, Supreme Court, New Delhi.
Ends: As above 1204. The Chief Justice of India was camping at Simla then. The Government of India had to take a decision as per the interim order of this Court on or before May 27, 1981. In view of the urgency involved, the Chief Justice of India sent his reply as per letter of May 22, 1981 through a special messenger from Simla to the Law Minister which reads as follows:
CHIEF JUSTICE OF INDIA SUPREME COURT OF INDIA NEW DELHI CAMP: SIMLA MAY, 22 1981 CONFIDENTIAL By Special Messenger My dear Shiv Shanker, I am in receipt of your letter (D. O. No. 50/2/81-Jus) dated May 21, 1981 seeking my advice in regard to the continuance or otherwise of the terms of Justice S.N. Kumar and Justice S.B. Wad who are at present functioning as additional Judges of the Delhi High Court and whose terms were extended by a period of three months with effect from March 6, 1981.
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 (sic) of March 19.
The Chief Justice met me on March 26, 1931 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 any thing 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. Justice Kumar was sitting with Justice T.P.S. Chawla for quite some time during the period under consideration and it is a matter of wide knowledge that Justice Chawla takes an enormously long time over the cases which come before him. Sitting with Justice Chawla as a junior Judge, Justice Kumar could have done precious little to hasten the disposal of cases which came before the Bench.
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 part-heard cases on which a substantial amount of time has been already spent. Justice Kumar therefore did nothing out 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.
You have annexed to your letter an extract of a further report from the I. B. which says that:
(Portion relating to I. B. report omitted) On my return on May 26, 1981 I will get into touch with Justice Kumar and make enquiries from him as also from other persons who are likely to be in the know of the matter. Until then it is impossible for me to tender any opinion one way or the other.
I would therefore propose that Justice Kumar’s term, and consequently Justice Wad’s term, should be extended by a further period of three months.
With regards, Yours sincerely, Sd/-
(Y. V. Chandrachud) Shri P. Shiv Shanker, Minister for Law, Justice and Company Affairs, New Delhi.
1205. This letter recommends a further extension by three months to Shri S.N. Kumar pending further enquiry by the Chief Justice of India on the contents of some I. B. report. But the Chief Justice of India is categorical that the three reasons viz. “(1) that serious complaints were received against Justice S.N. Kumar orally as well as in writing; (2) that Justice Kumar was hot very helpful in disposing of cases; (3) that some responsible members of the Bar and the Bench had expressed doubts about Justice Kumar’s integrity” given by the Chief Justice of the Delhi High Court were unsustainable. The letter refers to the meeting of Mar., 26, 1961 between the Chief Justice of India and the Chief Justice of the Delhi High Court. The rest of the contents are self-explanatory. This letter is followed by the letter of May 20, 1981 by the Chief Justice of India to the Law Minister which runs as under:
Chief Justice of India Supreme Court of India New Delhi May 29, 1981 Confidential My dear Shiv Shanker, While in Simla, I received your letter dated May 21, 1981 in connection with the extension of the term of Justice S.N. Kumar and Justice S.B. Wad whose term as Additional Judges of the Delhi High Court is due to expire on June 6, 1981. Immediately on receipt of your letter I sent a reply to you dated May 22, 1981, recommending, for the time being, that the term of the two Judges be extended by a further period of three months. In so far as Justice Wad is concerned there was no difficulty in recommending the extension of his term for the normal period of two years or until the occurrence of a permanent vacancy but that could not be done since he is junior in appointment to Justice S.N. Kumar and a further report from the I. B. was enclosed along with your aforesaid letter in regard to Justice Kumar. I had stated in my reply that after my return to Delhi I will make enquiries into the allegations contained in the I. B. report against Justice Kumar and shall thereafter tender my advice on the question regarding the further extension of his term.
The report of the I. B. contains the following information in regard to Justice Kumar:
(Portion relating to I. B. report omitted) I have already stated in my reply of 22nd that I do not agree that Justice Kumar’s term should not be extended as an additional Judge for the reason either that he is slow in his disposals or that he lacks integrity.
I, therefore, recommend that the term of Justice S.N. Kumar as an Additional Judge should be extended by a further period of two years.
As a consequence, the term of Justice S.B. Wad should also be extended by a further period of two years.
With regards, Yours sincerely, Sd/-
(Y. V. Chandrachud) Shri P. Shiv Shanker, Minister of Law, Justice and Company Affairs, New: Delhi.
1206. This letter recommends an extension of two years to Shri S.N. Kumar instead of three months’ extension recommended in the letter of May 22, 1981. But by the time the letter of May 29, 1981 was received, the Law Minister had recorded his note on May 27, 1981, the relevant pert of which reads:
In my letter to the C. J. I. dated 21-5-1981, I categorically requested to have the details of inquiries that he might have made in terms of his advice dated 3-3-1981. I desired the details consciously as 1 did so with the Chief Justice of Delhi High Court since, the C J. I. termed the letter of C. J. Delhi dated 19-2-81, addressed to me as too vague to accept that Shri Kumar lacks integrity. I regret that notwithstanding my specific request as to details, the C. J. I. did not furnish me the same and on the contrary reading his letter dated 22-5-81 would reveal that he became a victim of his own charge of vagueness made by him against the Chief Justice of Delhi. C.J.I. does mention that C. J. Delhi met him on 26-3-1981; 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 7-5-81. This presumption is raised on the basis of the letters from the Chief Justice, Delhi. Even assuming that there is a prevalent practice as referred to by the C. J. I. the C. J. I. himself says that such cases should be those on which substantial amount of time has been already spent. The C. J. I. surprisingly has left the matter there, without further probing 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. 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 latter dated 7-5-81 go further.
The C. J. I. also observes that he made inquiries in regard to Justice Kumar’s integrity generally. The C. J. I. states that in his general inquiries no member of the Bar or the Bench doubted the integrity of Justice Kumar. I regret that the letter of C. J. I. is not only lacking in details as desired by me but too vague. The premises on which he does not doubt the integrity of Shri Justice Kumar is wholly different.
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.
I therefore agree with the observations contained in the note of the Secretary (Justice) and opine 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 and thus recommend accordingly.
1207. In the earlier part of the aforesaid note, the Law Minister has stated that he “would avoid going to the I. B. Reports or Shri Kumar’s disposals or even the behaviour in the Court and prefer to confine to the question of reputation and integrity” of Shri S.N. Kumar. The consultation process thus came to an end.
1208. The two questions to be considered here are whether the Union Government committed an error amounting to an unfair act in not sending the letter of May 7, 1981 of the Chief Justice of the Delhi High Court to the Chief Justice of India and whether on account of not sending that letter, the consultation process is vitiated. The note of May 19, 1981 of the Law Minister containing the reasons given by the Delhi Chief Justice for requesting the Law Minister not to send the letter of May 7, 1981 to anybody else is confirmed by the following letter dated May 29, 1981 written by the Law Minister to the Delhi Chief Justice:
D. O. No. 50/2W/81/-Jus. Part May 29, 1981 My dear Chief Justice, When you spoke to me on 10th May, 1981, you had requested me that the letter that you were proposing to send to me regarding Justice O. N. Vohra should be kept secret for personal attention only. You had made a similar request about letter dated 7th May, 1981 regarding Justice S.N. Kumar. On my request you elucidated that when you marked your letter dated 7th May, 1981, “secret for Personal Attention only” what you were particular about was that the letter may not be brought to the notice of Chief Justice of India for the following reasons:
1. For the reasons stated in the opening portion of your letter dated 7th May, 1981.
2. You felt highly embarrassed as the contents of your letter dated 19th Feb., 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 Feb, 19, 1981.
2. You mentioned that you could not desist from expressing without fear or favour what you felt about certain matter but at the same time you were particular that your relations with the Chief Justice of India should not be spoiled.
3. For similar reasons’ you were particular that your letter regarding Shri O. N. Vohra should not be sent to him as also for the additional reason that a senior counsel whose name figured therein had enjoined secrecy. Your letter regarding Shri O. N. Vohra dated 22nd May, 1981 has since been received by us.
4. In view of the emphasis laid by you on keeping these letters confidential from the Chief Justice of India we have not shown these to him. This is for favour of your information.
With regards, Yours sincerely, Sd/-
(P. Shiv Shanker) Shri Prakash Narain, Chief Justice, Delhi High Court, New Delhi.
1209. The note of the Law Minister D/- 19-5-1981 and the letter of May 29, 1981 written by the Law Minister to the Delhi Chief Justice which refer to the request of the Delhi Chief Justice clearly establish that the letter of May 7, 1981 was not sent to the Chief Justice of India not as part of any conspiracy or pact between the Law Minister and the Delhi Chief Justice but at the request of the Delhi Chief Justice. It is not also shown as to what advantage the Law Minister was deriving by withholding the said letter from the knowledge of the Chief Justice of India unless we start with the assumption that for some undisclosed reason the Law Minister was bent upon treating Shri S.N. Kumar with an ‘evil eye and an un-even hand’ and for that reason he kept back the letter from the knowledge of the Chief Justice of India. The Delhi Chief Justice has given three reasons for requesting the Law Minister not to send the letter outside his office. The first reason is, according to the Delhi Chief Justice, contained in the first para of the letter of May 7, 1981. That para refers to the meeting which had taken place between the Chief Justice of India and himself on Mar. 26, 1981 on all relevant points relating to the proposal of reappointment of Shri S.N. Kumar and the fact that he had written the letter of Mar., 28, 1981 to the Law Minister ‘as desired’ by the Chief Justice of India. That there was full and frank discussion between the Chief Justice of India and the Delhi Chief Justice with reference to the very particulars referred to in the letter of May 7, 1981 is clear by the following facts : (i) The statement “with regard to the complaints about Justice Kumar’s integrity and general conduct, the matter has already been discussed between us” which is found in the letter of March 28, 1981 written by the Delhi Chief Justice to the Chief Justice of India (ii) the reference to the meeting in the letter of the same date addressed by the Delhi Chief Justice to the Law Minister enclosing a copy of the above said letter dated Mar. 28, 1981, (iii) the reference to the meeting in the letter of the Law Minister to the Chief Justice of India dated May 21, 1981 and (iv) the reference to the meeting in the letter of the Chief Justice of India dated May 22, 1981 written from Simla. This is further supported by the affidavit dated July 17, 1981 of Shri S.N. Kumar himself which had been filed long before the date on which documents in question were directed to be disclosed by the Court i.e. in Oct., 1981. The relevant part of the aforesaid affidavit of Shri S.N. Kumar reads:
Hon’ble the Chief Justice of India, on the other hand discussed the matter with me at length about my work and other general matters. I gave him full and true information and supplied him relevant papers for his consideration. Since the Government has not disclosed the reasons for its action I have no other course open but to apprise this Court briefly of what is in my knowledge. It was alleged that I was slow and that it was improper for me to continue to deal with original work while sitting on the appellate side. A comparative assessment of work disposed of by eight Judges who sat on the original side with me showed that the work disposed of by me was nearly maximum. I disposed of 827 matters during 256 sittings out of which 385 were civil suits and 442 miscellaneous matters.
Regarding the second allegation, I say that on the contrary it would be, improper for a Judge not to finish a part-heard matter. I acted in accordance with the well established practice of Court. I know that two Judges of this Court threatened issuing of contempt notice to the officer concerned who removed a part-heard matter from their lists. The practice is so well understood that the Registry of the Court itself fixes cases accordingly in routine. Furthermore a perusal of the proceedings in the part-heard matters would reveal the ridiculous nature of the allegations.
1210. Then Shri S.N. Kumar refers to the proceedings in Suit No. 5/1980, Suit No. 87/1975, Suit Nos. 1408, 1409 and 1417/1979, Suit No. 304/1974, Suit No. 327/1979, Ex. No. 11/1978, C. C. P. No. 13/ 1979 and Suit No. 73/1979. Thereafter he says:
20. As stated above I informed the Chief Justice of India that the old established practice in Delhi High Court is that a part-heard matter goes with the Judges and is heard by him whether he goes over from the appellate side to the original side or vice versa. A bunch of over 30 part-heard Regular Division Bench matters were heard during January and Feb., 1981 on Fridays by me sitting with Chawla, J. while I was holding Court singly on the Original Side w.e.f. 5-1-1981. L.P.A. 32 of 1980 was heard during February, 81 by me while sitting with Mr. Chawla, J. Even on 24th April, 1981 (Friday) when the aforesaid material was sent to the Chief Justice of India by me the following part-heard matters were posted in the Division Bench of which I was a member:
(1) Civil Writ No. 557/79 and Civil Writ No. 1231 of 1979 (2) Civil Writ No. 61/80 with C. Ms. Practically every week once from Jan., 81 till the end of May, 81, I was sitting in the Division Bench with Chawla, J. to finish part-heard matters.
1211. When a question was put by the Court as to who gave the particulars of the cases referred to above the learned Counsel mentioned that they were given by the Chief Justice of India. That means that the Chief Justice of India had been furnished all the particulars by the Delhi Chief Justice earlier at the meeting which took place on Mar., 26, 1981 and the Chief Justice of India had also the explanation of Shri S.N. Kumar. It is not necessary for us here to assess correctness or otherwise of the conflicting versions of the Chief Justice of the Delhi High Court and of Shri S.N. Kumar bearing oh the matters referred to above but the aforesaid particulars are sufficient to hold that sufficient information was available with the Chief Justice of India to record his opinion on the question of appointment of Shri S.N. Kumar and no material of any substantial importance had been kept back from the knowledge of the Chief Justice of India. The letter of May 7, 1981 written by the Chief Justice of the Delhi High Court, to the Law Minister which is quoted above more or less contained the same particulars. There would have some reason to complain if the material contained in the letter of May 7, 1981 was favourable to Shri S.N. Kumar and the Chief Justice of India had recommended that Shri S.N. Kumar should not be appointed in ignorance of the contents of the letter of May 7, 1981. On the other hand, oh the basis of the material which Had been made available to him; the Chief Justice of India had made a report favourable to Shri S.N. Kumar. There appears to be not much substance in the submission that Shri S.N. Kumar was denied the benefit of a further refutation by the Chief Justice of India of the allegations in the letter of May 7, 1981 and that he had suffered thereby. Such reiteration would not have added any further strength to his case. It cannot, therefore, be said that the process of consultation had become defective or that Shri S.N. Kumar had been prejudiced by reason of the Government keeping back the letter dated May 7, 1961 from the knowledge of the Chief Justice of India out of respect to the wishes of the Chief Justice of the Delhi High Court.
1212. One of the arguments urged on the basis of the Law Minister’s note dated May 19, 1981 may be disposed of here. That argument is that since the Chief Justice of the Delhi High Court had stated that he was looking into the file of the ‘Kissa Kursi Ka’ case in which Shri O. N. Vohra had convicted late Shri Sanjay Gandhi (son of the Prime Minister) who was later on acquitted by the Supreme Court, the Chief Justice of the Delhi High Court was looking into irrelevant papers at the instance of the Law Minister or the Prime Minister to find out some material against Shri O. N. Vohra who was also not continued as additional Judge and hence his opinion given against Shri S.N. Kumar also was a motivated one. Apart from the above reference to his looking into the file of ‘Kissa Kursi Ka’ case, we do not have any other material to draw the above conclusion except the fact that Shri Vohra also had not been continued. It is not known what opinion was expressed by the Delhi Chief Justice on that material. Shri Vohra himself has not questioned the decision taken in his behalf. The Court cannot go outside the record. Prejudice and passion cannot be allowed to overtake reason. It is not open to the Court to draw an adverse inference against the Chief Justice of the Delhi High Court who is not before the Court. Any attempt to do so would be an un-judicial act. There is, therefore, no merit in this contention.
1213. It is, however, contended that the Law Minister had tried to ‘pre-empt’ the decision on the issue by making up his mind on May 27, 1981 not to reappoint Shri S.N. Kumar even before the Chief Justice of India wrote his final letter dated May 29, 1981 recommending reappointment of Shri Kumar for a period of two years instead of three months as stated in the letter dated May 22, 1981. There does not appear to be any undue haste or impropriety on the part of the Law Minister in making his recommendation not to appoint Shri Kumar on May 27, 1981 for two reasons: (1) that the Government had to take a decision on that question on or before May 27, 1981 as directed by the interim order referred to above and (2) that the Law Minister had expressly kept out of consideration the I. B. reports while taking his decision, as can be seen from the note of May 27, 1981 on which alone the Chief Justice of India had reserved his opinion in his letter dated May 22, 1981 which showed that on the other questions he had finally expressed his opinion. Another point which may be noticed here is that the granting of extension to a Judge pending enquiry into a material aspect of the case may not strictly be in consonance with the Constitution. It may be irregular to issue a warrant of appointment pending inquiry into the fitness of the person to be appointed as a Judge. Hence it cannot be said that there was any transgression of ordinary rules of official conduct on the part of the Government in finally processing the file by May 27, 1981.
1214. The President has taken his decision on a consideration of the material before him and in doing so he is not shown to have relied on any irrelevant ground. The President, as observed earlier, is entitled to arrive at his own decision on the question of appointment of a Judge after consultation with the dignitaries mentioned in Article 217(1) of the Constitution. He is not, however, bound by the opinion of any of them although he is expected to give due regard to the opinions expressed by them. The President in the instant case has, as stated by the learned Attorney General, out of prudence decided not to reappoint Shri S.N. Kumar as the opinions of the two constitutional dignitaries were conflicting on the question of integrity, a question vital to the appointment of a Judge, There appears to be no constitutional impropriety in the decision of the President. The reason for not reappointing Shri Kumar is not an irrelevant one. Moreover there is a distinction between the appointment of a Judge without proper and effective consultation as required by Article 217(1) and a non-appointment of a person as a Judge preceded by defective consultation. In the former case the validity of the appointment may be open to question but in the latter case ordinarily no petition will lie except under an extraordinary case like the one here where the scope of Article 224 of the Constitution was not correctly understood by the authorities. Every one of the authorities viz. the Law Minister, the Chief Justice of India and the Chief Justice of the Delhi High Court has discharged his duties in this case with a sense of responsibility. But it is unfortunate that they could not arrive at a unanimous opinion. If the reasons had been irrelevant, probably the Court could have asked the Government to reconsider the matter. But that is not the case here.
1215. Shri R. K. Garg, learned Counsel for Shri Kumar strenuously urged before us that Shri S.N. Kumar was ready to establish his innocence and an opportunity should be given to him to do so. His anxiety in making that submission is quite understandable. But unfortunately the Court cannot undertake this function in view of the restricted scope of the jurisdiction of this Court in this case. In spite of the limitations which appeared to exist at the earlier stages of this case, this case has turned out to be remarkable for two reasons. First the Court directed for the purpose of deciding this case the disclosure of the documents relating to the appointment to a high constitutional office which may not have been possible in any other Commonwealth country even now and secondly the Court has come to the conclusion that it is open to the Court to determine whether the decision not to reappoint Shri S.N. Kumar was due to cogent reasons or not in the peculiar circumstances of this case even when the relevant constitutional provisions are silent about it. In these two respects, this case should be considered as an important milestone in the development of administrative law in our country. The Court, however, cannot proceed further in this case and try to find out the truth or otherwise of the complaints said to have been made against Shri S.N. Kumar. It is true that if the complaints are really untrue, then Shri Kumar has paid the penalty for no fault committed by him. But it should be a matter of some consolation that the Chief Justice of India has exonerated him fully. It is also made clear that the Court has declined to grant the prayer of Shri S.N. Kumar without expressing any opinion one way or the other on his integrity or efficiency. The result of this case should demonstrate to all those who are today holding the posts of Judges and to those who aspire after judge ships how difficult it is to maintain the fair image of a Judge. The decision of the President not to appoint Shri S.N. Kumar as an additional Judge of the High Court of Delhi cannot, therefore, be interfered with.
PART X 1216. The validity of the circular letter dated Mar., 18, 1981 sent by the Law Minister to all the Chief Ministers is seriously assailed before us by the petitioners. It is contended by them that the letter amounts to a threat to all the additional Judges whose consent for being appointed as permanent Judges in High Courts other than the one in which they were working is sought. The Government contends that the letter does not contain any such threat and that it had been sent in order to implement the policy of the Government to have some Judges in every High Court who belong to other States. By the letter in question, the Law Minister has requested the Chief Ministers of States (except North-Eastern States) and the Governor of Punjab to ascertain the wishes of all additional Judges working in their High Courts and persons whose names have been recommended for appointment as Judges of High Courts whether they are willing to work in High Court outside their States. The circular letter reads:
D. O. No. 66/10/81-Jus.
Minister of Law Justice and Company Affairs, India New Delhi-10001 >March 18, 1981 My dear, It has repeatedly been suggested to Government over the years by several bodies and forums including the States Re-organisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the Judges of a High Court should as far as possible be from outside the State in which that High Court is situated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction.
2. In this context, I would request 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 of Government either in regard to their appointment or in regard to accommodation in accordance with the preference 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. Shiv Shanker) To
1. Governor of Punjab
2. Chief Ministers (by name) (except North-Eastern States) 1217. In its Fourteenth Report, the Law Commission suggested that the whole country should be treated as a single unit for the purpose of selection of Judges of the High Court. The relevant part of the report reads:
59. Further, the whole country must be treated as a single unit for the purpose of selection as it is vitially important that the best available talent which the country is capable of providing be mobilized for the task of meeting a situation which has undoubtedly assumed the proportions of an emergency. If suitable persons of the necessary merit and character are in the opinion of the appointing authority not available in the State, the authority should not hesitate to draw upon persons available in other States. Selections from the Bar must necessarily be of persons of outstanding merit commanding a large practice who may well be willing to make a pecuniary sacrifice and render public service by accepting these judgeships. An effort should be made to persuade suitable senior practitioners to accept these judgeships at least for a short period as a public duty. Their position at the Bar must be of such eminence that it could not be suggested that acceptance by them of judgeships was likely to increase their earnings on their reverting to the Bar”. (Vide Para 59 in Chapter 6 of the 14th Report of the Law Commission of India, Vol. I) 1218. The advantages gained by having persons from other States as Judges of High Court were stated by the Law Commission presided over by Justice H.R. Khanna, in its 80th Report thus:
6.21. We may next deal with the question of having in each High Court about one-third of judges from outside the State. Recommendation for this purpose was made by the States Reorganisation Commission. The Law Commission presided over by Mr. Setalvad in its fourteenth Report observed in this connection:
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 recruiting ground for appointments to the High Courts 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 out-side the State will be realised.
Likewise, the Study Team on center-State Relations 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 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 a 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 1219. While rejecting the contention that the transfers of High Court Judges during the emergency in the year 1976 had been made in the interests of national integration, Chandrachud, J. (as he then was) observed in Sankalchand Sheth’s case (supra) thus:
As regard 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 interest of national integration is a moot point. But that is a policy matter with which courts are not concerned directly. One may, however, venture the observation that there are numerous other ways of achieving national integration more effectively than by transferring High Court Judges from one High Court to another. Considering the great inconvenience, hardship and possibly a slur, which a transfer from one High Court to another involves, the better view would be to leave the Judges untouched and take other measures to achieve that purpose. If at all, on mature and objective appraisal of the situation it is still felt that there should be a fair sprinkling in the High Court judiciary of persons belonging to other States, that object can be more easily and effectively attained by making appointments of outsiders initially. 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, (emphasis added) 1220. Untwalia, J. observed in that very case at page 507 of (1978) 1 SCR : at p. 2388 of AIR 1977 SC thus:
The purpose of national integration, if otherwise it is a good thing to be achieved, or the need of particular High Court for a Judge possessing a particular type of proficiency or some such grounds of public interest can well be achieved at the time of the initial appointments; as for example, a member of the Bar practising in a particular High Court may be appointed at the very threshold, if he so agrees to be appointed, a Judge of another High Court so that after retirement he may come back and resume his practice in the High Court where he was so doing. I shall, perhaps, be crossing my permissible limits if I embark to write an essay or a thesis on the various aspects of the needs of such public interest highlighting the minus points also in them, nor will it serve any useful purpose. These are matters of policy decision entirely within the realm of the governmental power.
(emphasis added) 1221. These two extracts from the decision in Sankalchand Sheth’s case (supra) clearly state that if as a matter of policy the Government propose to appoint some Judges in every High Court from outside the State, it is a matter within the realm of the Government. They have not stated that it is constitutionally impermissible to do so.
1222. The objections raised by the petitioners to the opinions of the Law Commission referred to above are that they could not be relied on as the said opinions had not been tested by the ‘purifying process’ of an argument at the Bar and secondly the recruitment of members of the Bar or of the subordinate judiciary functioning outside the State would be unconstitutional as there would be no possibility of an effective consultation with the Chief Justice of the High Court and the Governor of the concerned State as they would have no opportunity of personally assessing the qualities of members of the Bar and the subordinate judiciary working outside their jurisdiction.
1223. The Report of the Committees of the Law Commission are entitled, to great respect as they are prepared by experienced persons after taking into consideration all relevant aspects and sometimes the evidence collected by them from several sources. If they are to be excluded many opinions expressed in many of the books relied on by the petitioners themselves have to be excluded. Reports of the Law Commission can be looked into to understand the history of the legislation, the object with which certain legal provisions are enacted and what advantages may be derived by adopting a particular policy. Reports of the Law Commission have been made use of by this Court earlier to understand the history of the legislation which was under consideration and the object with which it was passed. (Vide Balchand Jain v. State of Madhya Pradesh . The second limb of this argument overlooks the fact that the Constitution does not state that the Chief Justice of the High Court and the Governor of the State should personally know the persons recommended under Article 217 of the Constitution and that they cannot collect information about them by any other source such as the Chief Justice of the High Court having jurisdiction over the area where they are working or the Governor of the other State. In the true nature of things such personal knowledge cannot be insisted upon. If that is insisted upon, the consultation with the Chief Justice of India itself may turn out to be ineffective for the very same reason for he cannot be expected to have personal knowledge about many persons whose names are recommended by the Chief Justices of the various High Courts and Governors, In the context of Article 217, it has to be held that the functionaries who have to express opinion under that Article can ascertain all relevant information about a person proposed for the appointment by any other reasonable means and they need not know them personally. Any other view would result in the exclusion of a large body of lawyers who are not practising before the High Courts from consideration for appointment as High Court Judges, which certainly could not have been the intention of the Constitution makers.
1224. The next contention urged in this connection is that this is an indirect attempt to transfer some additional Judges from one High Court to another, It cannot be so for the reason that the transfer of an additional Judge (appointed under Article 224(1)) unless the arrears have been cleared off and the transfer of an acting Judge (appointed under Article 224(2)) in any event would not be possible at all. An additional Judge is appointed for a term not exceeding two years only with a view to clearing off the arrears in a High Court. If that is the sole object of appointing him, how can he be transferred as an additional Judge in the public interest from that Court to another Court unless the purpose for which he is appointed is achieved namely, clearing off the arrears? Moreover when his stay as an additional Judge is very short it would not subserve the interest of efficiency of public service if he is made to work in more than one High Court during that short period unless there is not sufficient work to be assigned to him in the High Court in which he is initially appointed as an additional Judge. The case of an acting Judge appointed under Article 224(2) of the Constitution is a self-evident one. An acting Judge is appointed to act as a Judge until the permanent Judge in whose place he is appointed has resumed his office. He cannot, therefore, be transferred under Article 222 contrary to the express terms of Article 224(2). In view of this declaration the petitioners cannot entertain any suspicion that the circular letter has been issued to achieve the object of transferring additional Judges, during their tenure fixed under Article 224(1). This, however, does not come in the way of an additional Judge or an acting Judge being appointed as a permanent Judge either in his own High Court or in any other High Court before the tenure specified under Article 224(1) or Article 224(2), as the case may be, comes to an end.
1225. I also do not find any substance in the submission made on behalf of some of the petitioners that the circular letter of the Law Minister suggests that the additional Judges who have not given their consent would Toe under a disadvantage in the matter of their continuance as additional Judges or of their appointment as permanent Judges in their own Court. The learned Attorney-General has stated before the Court that ‘beyond any inherent or incidental advantage that the implementation of the policy of appointing outside Judges may confer, no other advantage or disadvantage is to be visited oh any person by reason of his having given consent or his refusal in response to the inquiry stated in the impugned letter of 18th March, 1981’. In view of the above statement, I take it that the portion in paragraph 3 of the letter, namely, ‘it may be made clear to them that the furnishing of the consent or the indication of a preference does not imply any commitment on the part of Government either in regard to their appointment or in regard to accommodation in accordance with the preference given’ does not carry with it any sinister design. It is submitted on behalf of the Government that such a statement had to be made because the necessary consultations under Article 217(1) of the Constitution had yet to be made. This explanation is accepted -reserving liberty to any additional Judge, who is prejudiced by his not giving consent, to approach the Court for appropriate relief if an occasion arises to do so.
1226. There is also no merit in the contention, that since the circular letter had been addressed without the previous consultation of the Chief Justice of India, Article 217(1) and Article 222 of the Constitution had been violated. The letter as can be seen from its tenor is intended to find out whether any additional Judge is willing to be appointed as a Judge in any other High Court. Such appointment has to be made only in accordance with Article 217(1) of the Constitution. Before making such appointment, the President has to consult all the functionaries mentioned in Article 217(1) including the Chief Justice of India. Article 222 of the Constitution does not come into picture at all as no transfer is contemplated under the letter. The letter relates to initial appointments only. In the circumstances there is no error committed by the Law Minister in writing the impugned letter to the Chief Ministers.
1227. All the contentions of the petitioners regarding the circular letter of the Law Minister dated March 18, 1981, therefore fail.
PART XI 1228. We are concerned in the case of Shri K. B. N. Singh with the question whether the order of his transfer as the Chief Justice of the High Court of Madras is valid or not. Earlier it has been held that the consent of the Judge to be transferred is not necessary under Article 222 of the Constitution and that such transfer can be made in the public interest as laid down by the majority in Sankalchand Sheth’s case ) (supra). The order in question is an administrative order which is passed by the President in accordance with the opinion expressed by the Chief Justice of India, who is the sole authority to be consulted under Article 222. In this case also as per directions of this Court, the relevant papers have been produced by the Union Government. It is urged that the manner in which consultation is made in this case is not in accordance with law as the President had not initially asked the Chief Justice of India to give his opinion on the question of transfer of Shri K. B. N. Singh but the Chief Justice of India had on his own accord advised the Union Government to transfer him first to the High Court of Rajasthan and later on to the High Court of Madras. Article 222 does not lay down the procedure to be followed for effecting a transfer. Even granting that the proceedings for transfer of a Judge are initiated by the Chief Justice of India the order of transfer would not be bad as under Article 217(1) of the Constitution which is couched in almost the same language, an appointment of a Judge would not be bad only because the Chief Justice of a High Court who is one of the authorities to be consulted initiates the proposal. In fact the practice has been that the Chief Justice of the High Court invariably initiates it. This contention is not therefore one of substance. The crux of the question is whether the authority exercising the power of transfer has brought to the knowledge of the authority to be consulted all the relevant material with it and has given sufficient opportunity to tender his opinion. There is no allegation that the Government had kept back any relevant information from the Chief Justice of India. The Chief Justice of India himself says In his counter-affidavit that there was full and effective consultation with him. A fair reading of the letter of the Chief Justice of India dated December 7, 1930 shows that there was prior discussion about the question of transfers of Chief Justices of High Courts and that there was a suggestion by the Government that there should be a transfer of all Chief Justices of High Courts so that in every High Court there was a Chief Justice who hailed from outside the State, This suggestion stems from the proposed policy of the Government which is clear from the statement of the Law Minister in the Lok Sabha on July 24, 1980, the relevant part of which reads: “…Policy is whether we should have the Chief Justice from outside. This is the policy. How we should have is a matter of mechanism.” There are similar references to it in some other speeches of the Law Minister both in the Lok Sabha and in the Rajya Sabha. Even though it appears from some of the speeches of the Law Minister that such a policy had not taken a final shape, the Chief Justice of India had been told that the Government had an idea to bring into force such a policy before the middle of 1980. From certain notings on the file relating to the appointment of Chief Justice of the Delhi High Court which were disclosed by the Union Government as per orders of the Court dated November 18, 1981 it is evident that, there was discussion between the Central Government and the Chief Justice of India about the policy of appointing the Chief Justice of every High Court from outside the State. The first note of the Law Minister dated May 15, 1980 where he specifically refers to the said policy refers to the discussion he had with the Chief Justice of India on it. The next note in that file is of the Chief Justice of India. It is dated June S, 1980 and the relevant part of it reads:
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….
1229. This note is followed by the note of the Law Minister dated July 21, 1980. In that it is stated:
The Chief Justice of India and I had a detailed discussion yesterday morning on the question of appointment and transfer of Chief Justices of the High Courts so that the position of the Chief Justice of a High Court is held by an outsider as a matter of policy. This would avoid discriminatory treatment which would have otherwise invited undue criticism….
In view of the discussion with the C.J.I., it appears desirable to appoint Shri Justice Prakash Narain as the Permanent Chief Justice of the Delhi High Court and Shri Justice Kuppuswami as Permanent Chief Justice of Andhra Pradesh High Court, subject to the general policy decision on having the Chief Justice from outside that High Court. It is clearly understood that subject to the general policy decision and the mechanism that would be evolved to give effect to that policy, Shri Justice Prakash Narain and Shri Justice Kuppuswami would be transferred to different High Courts….
1230. Then there is a long note dated July 31, 1980 of the Chief Justice of India in which he has observed 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. Similarly, appointments of Chief Justices may be made from outside, whenever the circumstances warrant. This involves the assessment of each individual situation as and when it arises….
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. Such a course will introduce numerous complications the general nature of which I have discussed with the Law Minister. The question is so replete with practical difficulties and involves a question of such high principle that a very careful thought shall have to be given to it before a final decision is taken.
I, therefore, reiterate my earlier recommendation that Mr. Justice Prakash Narain should be appointed as the permanent Chief Justice of the Delhi High Court and Shri Justice Kuppuswami as the permanent Chief Justice of the Andhra Pradesh High Court. I consider it unnecessary to add that these appointments should be “subject to the general policy” of appointing Chief Justices from outside, because if, eventually, a decision is taken that every Chief Justice must come from outside, it will naturally become necessary to consider the transfer of Mr. Justice Prakash Narain and Mr. Justice Kuppuswami.
1231. The above notings show that the Chief Justice of India who had been apprised of the proposed policy of the Government had not opposed the transfer of Chief Justices of High Courts as a matter of policy but only had expressed certain points which needed to be considered before taking a final decision on the question.
1232. In this letter dated December 7, 1980 however the Chief Justice of India says “though I am firmly opposed to wholesale transfers of the Chief Justices of the 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.” It is true, the Chief Justice of India stated that he was opposed to ‘wholesale transfers’ but he does not appear to have opposed the policy of having the Chief Justice of every High Court from outside the State. This statement may mean that at the same time the transfers or appointments of all the Chief Justices of all the eighteen High Courts in accordance with the policy may not be advisable. There may be a Chief Justice who has only three or four months of service before his superannuation. There may be a Chief Justice who is ailing and who cannot, therefore, be moved to another High Court immediately. Moreover the Chief Justice of India has to get into touch with each one of the Chief Justices before an order of transfer is made in his case to ascertain from him his problems. There may be some difficulty in finding out a suitable High Court for a Chief Justice because the question of adjustment of seniority between him and the other Judges of that Court may pose a problem. It is probably on account of these difficulties the Chief Justice of India stated that he was opposed to a ‘wholesale transfer’ of the Chief Justices. This statement cannot be read as conveying the meaning that the Chief Justice of India wanted that only some particular Chief Justices should be transferred or that the: policy should be implemented in the case of particular High Courts. There is no doubt that a policy decision should ultimately be applicable to all High Courts. But it can be applied by stages. A policy or fur that matter a law may have to be applied by stages in different areas and in the case of different institutions or bodies by reason of administrative compulsions and such application cannot be considered as either arbitrary or capricious or unconstitutional. Sometimes the application of a policy or a law in all areas or in respect of all institutions to which it is ultimately intended to apply simultaneously may defeat the very policy or law, even though it may be otherwise beneficial. The difficulties involved in such ‘whole-sale’ application might have given rise to the difficulty expressed by the Chief Justice. This appears, to be a reasonable construction to be placed, on the said statement of the Chief Justice of India. One should remember that the said statement is in a letter and not in a statute and is one made in the context of previous correspondence and discussions which have gone on for some tune, in an informal way. Moreover a policy is not something which should take the form of a formal statute or a written coda It can be gathered from a course of action or conduct and it can take its birth when the first step is taken in its direction.
1233. The question of policy is a matter entirely for the President to decide. Even though the Chief Justice of India is consulted in that behalf by the President since the policy relates to the High Courts, his opinion is not binding oft the President. It is open to the President to adopt any policy which is subject only to the judicial review by the Court. Under Article 222 of the Constitution the Chief Justice of India has to be consulted on the question whether a particular Judge should be transferred and where he should be transferred while implementing the said policy. If the Government requests the Chief Justice of India to give his opinion on a transfer to implement the said policy which is really in the public interest he cannot decline to do so. Even though the Chief Justice was opposed to the ‘wholesale transfers’ of Judges there is no bar for the Government treating the recommendation for transfers made by the Chief Justice of India as a part of the implementation of its policy. That the transfer of Shri K. B. N. Singh was on account of the policy of the Govt. can be gathered from the following statements in the affidavit filed before this Court: In paragraph 8 of the affidavit dated September 16, 1S81 of Shri K. B. N. Singh. It is stated: “When the deponent -wanted to know why he might be transferred to Madras, the Hon’ble Chief Justice of India merely said that it was the Government policy, but gave no clue as to what necessitated his transfer from Patna to Madras,.” In para 2 (g) of the affidavit of the Chief Justice of India he has stated: “I deny that when Shri K. B. N. Singh wanted to know over the telephone on January 5, 1981, I stated merely that it was the ‘Government policy’….” In paragraph 8 of the rejoinder affidavit dated October 16, 1981 of Shri K. B. N. Singh, it is stated “at one point he also said that it was Government policy to effect transfer in batches of two or three.”
1234. It is seen that the two Chief Justices — Shri M. N. Ismail and Shri K. B. N. Singh were transferred at the first instance. Some other transfers probably would have followed but for the filing of these petitions. It is already held that the policy of having the Chief Justice in every High Court from outside the State is not unconstitutional and that it could be achieved by resorting to Article 222 of the Constitution. The transfer ordered pursuant to that policy cannot therefore be considered as either discriminatory or not being in the public interest. In fact such transfers are in the public interest, for reasons already stated.
1235. It is seen from the counter-affidavit of the Chief Justice of India that the transfer of Shri K. B. N. Singh had not been recommended by him on the basis of any allegation of misbehaviour or of incapacity which can form a basis for action under Article 218 read with Article 124(4) and (5) of the Constitution. The relevant part of that counter-affidavit reads:
It is true that he (Shri K. B. N. Singh) said that it was possible that some baseless complaints may have been made to me and that he would like to remove any wrong impression which those complaints may have created. I told him that I do not go by baseless complaints, that I did not believe that his conduct was blameworthy but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of the High Court, he was free to do so. Thereupon Shri K. B. N. Singh told me how certain persons connected with the High Court were influenced by communal considerations and how he, on his own part, did not permit communal or any other extraneous considerations to influence him administratively or judicially. I assured him that I did not hold that he himself was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction.
1236. The foregoing clearly shows that the Chief Justice of India had never formed an opinion that there was any error committed by Shri K. B. N. Singh, Hence there can be no basis for the apprehension in the mind of Shri K. B. N. Singh that the transfer was being used as a measure of punishment in his case. If it had been a selective transfer ordered without regard to the public interest it would have been unconstitutional. But this is not such a transfer. The order does not attach any stigma to Shri K. B. N. Singh. It is a bona fide one made in implementation of a perfectly valid policy which may be implemented in instalments.
1237. It is true that earlier the Chief Justice of India had recommended that Shri K. B. N. Singh should be transferred to the Rajasthan High Court. That was a part of the chain of transfers then proposed. It had not taken a final Shape since Shri K. B. N. Singh had not yet been informed about it and his views had not yet been ascertained. But when it was decided to transfer Shri M.M. Ismail to the Kerala High Court, the Chief Justice of India felt that the services of Shri K. B. N. Singh being a senior Chief Justice were required by the High Court of Madras. There is nothing unusual about this alteration but on the other hand shows that the Chief Justice of India had an open mind on the question of transfer until he made his final recommendation.
1238. The next submission made in this case is that the procedure followed in connection with the impugned order of transfer is not fair. Chandrachud, J. (as he then was) has dealt with the question of procedure to be followed before ordering the transfer of a Judge under Article 222 of the Constitution in Sankalchand Sheth’s case (supra) at page 456 of (1978) 1 SCR: at p. 2349 of AIR 1978 SC thus:
Article 222(1) postulates fair play and contains built-in safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice. Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge of this constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed.
1239. It is evident from the above passage that the duty of considering every relevant fact pertaining to a Judge is of the Chief Justice of India on the question of his transfer under Article 222 of the Constitution. In his counter-affidavit the Chief Justice of India has given the particulars of the enquiry he had made before recommending that Shri K. B. N. Singh should : be transferred to Madras. He first talked to Shri K. B. N. Singh over the telephone on January 5, 1981 and informed him about the proposal to transfer him to Madras. Again on January 8, 1981 Shri K. B. N. Singh met the Chief Justice of India at New Delhi and the question of transfer was again discussed. The relevant part of the counter-affidavit of the Chief Justice of India reads:
2 (f). It is true, as stated by Shri K. B. N. Singh in paragraph 8 of his affidavit, that I conveyed to him on the evening of January 5, 1981 over the telephone that it was proposed to transfer Shri Justice M. M. Ismail to Kerala and that he, Shri K. B. N. Singh, may have to go to Madras. I telephoned Shri K. B. N. Singh on January 5, 1981 in order to apprise him of the likelihood of his transfer to Madras and to ask him if he had anything to say on the question of his proposed transfer.
(g) I deny that when Shri K. B. N. Singh wanted to know over the telephone on January 5 why he may be transferred to Madras, I stated merely that it was the “government policy” and gave no clue as to what necessitated his transfer from Patna to Madras. I conveyed to him specifically that it was proposed to transfer Shri Justice M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place.
(h) It is true that Shri K. B. N. Singh told me over the telephone that his mother was bed-ridden and was not in a position to go with him to Madras. I deny that he told me of any other personal circumstance by reason of which it would be difficult for him to go on transfer to Madras. The only difficulty which he mentioned then or at any other time was that his mother was old and bed-ridden and would not therefore be able to go to Madras. He told me that if his transfer was insisted upon, he would prefer to resign. I requested: him not to act in haste and to give the matter a close thought. I added that I was making a note of the difficulty mentioned by him and that it will have to be taken into consideration before a final decision was taken. I requested him to come to Delhi to discuss the question of his transfer.
(3) Shri K. B. N. Singh has stated in paragraph 9 of his affidavit that he met me in Delhi three or four days later, told me of his acute and insurmountable personal difficulties in the event of his transfer to Madras, that he was with me for about 10-15 minutes and that I was noncommittal in the matter of his transfer. Shri K. B. N. Singh saw me at my residence on January 8, 1981 at 7-30 p. m. He was with me for quite some time much longer than 10 or 15 minutes. I discussed with him the question of his mother’s advanced age and illness, which was the only personal difficulty which he mentioned in the matter of his proposed transfer to Madras. I told him that I was unable to agree with him since there were other dependable persons in his family who could look after his mother and that, in any case, his brother Shri S. B. N. Singh who was practising in the High Court was quite capable of looking after the mother. He replied that his mother had a special attachment to him and he could not leave her to the care of his brother or other members of the family. It is true that he said that it was possible that some baseless complaints may have been made to me and that he would like to remove any wrong impression which those complaints may have created. I told him that I do not go by baseless complaints, that I did not believe that his conduct was blameworthy, but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of the High Court, he was free to do so. Thereupon Shri K. B. N. Singh told me how certain persons connected with the High Court were influenced by communal considerations, and how he, on his own part, did not permit communal or any other extraneous considerations to influence him administratively or judicially. I assured him that I did not hold that he himself was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. There are many more matters which he mentioned on the evening of January 8, 1981 but they do not directly bear upon the matters in issue herein and I will, therefore, not refer to them.
(4) The statement contained in paragraph 10 of the affidavit of Shri K. B. N. Singh that he had not conveyed to me his consent to the proposed transfer is true. I however deny that he was not consulted regarding his transfer to Madras. I had discussed the matter with him threadbare on more than two or three occasions. I deny that no reason, ground etc. necessitating or justifying his transfer was disclosed to him or discussed with him by me. On my part, I conveyed to him that his transfer was made in public interest, that it was not made by way of punishment and that it was also necessitated by the transfer of Shri Justice Ismail from Madras to Kerala.
1240. Although Sri K. B. N. Singh has not fully accepted the facts narrated in the passage extracted above, there is no reason for not accepting in its entirety the statement made by the Chief Justice of India. The above passage clearly shows that the Chief Justice of India had acted strictly in accordance with the procedure indicated by him in Sankalchand Sheth’s case (supra). There is, therefore, no ground to hold that the case of Shri K. B. N. Singh’s transfer was not considered by the Chief Justice of India in a fair and reasonable way.
1241. The next submission made on behalf of Shri K. B. N. Singh is that all aspects of the case were not placed before the President by the Chief Justice of India. This again is met by the statement of the Chief Justice of India in his counter-affidavit that “there was full and effective consultation between me and the President of India on the question of Shri K. B. N. Singh’s transfer from Patna to Madras as the Chief Justice of the Madras High Court Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer”. At the hearing the Court was informed that the President had not discussed the matter personally with the Chief Justice of India. The expression “President” should be understood here in the constitutional sense. The discussion must have taken place with the Minister concerned. It is not possible to accept the submission that no such discussion could have taken place at all after Shri K. B. N. Singh met the Chief Justice of India on the evening of January 8, 1981 because the Prime Minister had taken the decision on January 6, 1981 and there was no written record in support of it From the records produced before us it is seen that discussion has gone on between the authorities concerned sometimes over telephone and sometimes at a meeting. No minutes are kept of many such discussions. It cannot, therefore, be said that either there was no time to discuss or no such discussion had taken place a all. It has to be borne in mind that the Chief Justice of India asked Shri K. B. N. Singh to meet him at New Delhi to discuss the matter further and accordingly Shri K. B. N. Singh met him on January 8, 1981. If the Chief Justice of India had felt that any representation to be made by Shri K. B. N. Singh was irrelevant he would not have called him for discussion at New Delhi After discussing the matter with him he must have discussed the matter before the decision was taken on January 9, 1981 with the other authority concerned.
1242. In the course of the discussion referred to above all matters which had come to the knowledge of the Chief Justice of India, must have been placed before the person with whom the discussion had taken place. All official acts must be deemed to have been done in accordance with law. There is, therefore, no merit in this contention also.
1243. The last submission on the above question was that whereas the Chief Justice of India had recommended that Shri K. B. N. Singh should be transferred as a part of selective transfers, the President had treated them as part of the policy of having a Chief Justice in every High Court from outside the State which had not taken a final shape and therefore there was no consensus on the object to be achieved by the transfer. As already observed, the question of policy is within the realm of the Government. Therefore, even if the Chief Justice of India considered that the recommendation made by him was one of six or seven transfers suggested by him, which would mean for the time being a partial implementation of the policy, it cannot be said that the transfer of Shri K. B. N. Singh is bad, for all aspects relating to Shri K. B. N. Singh were considered by the appropriate authority before ordering the transfer. The transfer in question is not a stray case of transfer. A few other transfers were in contemplation at the relevant time and they necessitated consideration of individual cases separately. The transfers of Shri M.M. Ismail and Shri K. B. N. Singh were ordered. In all probability but for these petitions some more transfers would have materialised by now. We have to note that Article 222 of the Constitution is not confined only to policy transfers involving all Judges. Even individual Judges may be transferred for administrative reasons in the public interest. In the circumstances of the cast, it is difficult to hold that the transfer was an act of victimisation. One Other contention raised in this case is that the Chief Ministers of Tamil Nadu and Bihar had not been consulted in accordance with a memorandum issued by the Government. The question whether there can be any memorandum supplementing the provisions of Article 222 is a matter of doubt. But since the Court is informed that both the Chief Ministers had been consulted about the transfer of Shri K. B. N. Singh, there is no need to probe into this point any further.
1244. The decision to transfer a Judge under Article 222 of the Constitution, as already stated, is an administrative one. It is not alleged that any of the functionaries participating in that decision had any ill will against Shri K. B. N. Singh. The existence of mala fides may have been a ground to set aside the impugned order of transfer provided it had been alleged and established. In E. P. Royappa v. State of Tamil Nadu , while rejecting a contention against an order of transfer which had been impugned in that case, Bhagwati, J. has observed thus:
Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order or credibility.
1245. In this case, no such allegation of mala fides is made against any authority. On the other hand the” material available in the case clearly establishes that due procedure had been followed and all facts that justify the transfer have been affirmatively proved. It is shown that the authorities concerned felt satisfied about the need for the transfer. In view of the above finding, Shri K. B. N. Singh cannot derive much assistance from the observations made in the Barium Chemicals Ltd. v. Company Law Board , and in Rohtas Industries Ltd v. S. D. Agarwal . On the facts and in the circumstances of the case it is not possible to hold that the order of transfer of Shri K. B. N. Singh as the Chief Justice of the High Court of Madras is illegal and void.
PART XII 1246. Now the question is what relief can be granted in these cases. In the earlier part of this judgment there is a detailed discussion about the continued neglect on the part of the Government in not making a proper review from time to time’ of the number of permanent Judges necessary for each High Court and the irregular exercise of power under Article 224(1) of the Constitution in appointing additional Judges even though it was necessary to appoint permanent Judges, Even according to the Government there is need to appoint at least 150 Judges to clear off the arrears within two years. Article 216 of the Constitution, as observed earlier, confers power on the President to appoint adequate number of Judges in every High Court. In the United States of America the conditions in which a writ of mandamus may be issued to a Governor or the President are set out in paragraphs 140, 141 and 153 in Vol. 52 of the American Jurisprudence 2d. under the title ‘Mandamus’ thus:
140. Governor.
The question of how far the governor of a State is subject to the supervisory control of courts through the writ of mandamus is one of gravity and importance, which the courts regard as extremely delicate, and the solution of which they undertake with great reluctance. In some jurisdictions the courts refuse to issue the writ against a governor under any circumstances, whether the act sought to be enforced is regarded as ministerial or otherwise, on the theory that interference with his action constitutes a violation of the doctrine of separation of powers, or upon the ground that issuance of a writ is inexpedient because of possible difficulty in enforcing it. Under this view, a writ is not issuable against an executive for the purpose of compelling him to perform a duty, even though it is imposed upon him by statute. This reasoning has been “rejected in many jurisdictions, which allow the maintenance of mandamus proceedings against a governor under certain, circumstances. All courts agree that the remedy is’ not available to control the performance by a governor of political functions or functions requiring the exercise of discretion, but some will issue the writ to require the performance of ministerial duties, or to restrain an act in violation of law-Needless to say, mandamus will not issue to compel the performance by a governor of an act which does not fall within his prescribed duties, or which has already been performed.
141.– Political and discretionary functions.
State governors are invested by law with important governmental or political powers and duties belonging to the executive branch of the government, and the due performance thereof is entrusted to their official honesty, judgment and discretion. As to these purely executive or political functions devolving upon the chief executive officer of the State, and as to any other duties necessarily involving the exercise of official judgment and discretion, the doctrine is in-controverted that mandamus will not lie to control or compel his action. Applying the foregoing rule, the courts have denied the writ when sought to compel the governor to call an election; count or reject votes cast at an election; issue a commission or certificate of election to office; make an appointment to office; rescind an order removing or suspending an officer; recommend the passage of a particular law; sign or veto bills; institute a proceeding for the transfer of a federal prisoner to the State court; grant a pardon; approve a parole; borrow funds; sign or approve a warrant; issue bonds; subscribe to stock as required by statute; appoint a commission to appraise property which is sought to be condemned; allot or pay over money received from the Federal Government; approve a contract; or perform other like duties.
If it is the constitutional or statutory duty of a governor to exercise his discretion with respect to a certain matter, he may be required by mandamus to do so, but, of course, the writ does not lie to direct the manner in which his discretion shall be exercised….
153. President of United States.
As is also true in the case of a State governor, which in most respects is a similar office, mandamus does not lie to control the administrative or executive discretion of the President of the United States, and if the President delegates one of his functions to another officer, an order by the latter is an administrative order of the President, which cannot be vacated by mandamus. The celebrated case of Marbury v. Madison, 5 US 137 is generally considered as authority for the view that the courts have no jurisdiction to issue a writ of mandamus against the President to compel him to perform any act incidental to his office, whether purely ministerial in its character or not, although the writ may issue against the heads of departments of the Federal Government when the act to be performed is purely ministerial, not involving judgment or discretion. On the other hand, in a later case in the Federal Supreme Court, although the case did not involva the President , the Attorney-General of the United States in his argument, although appearing in behalf of the officer to whom the writ of mandamus was prayed, conceded that such a writ might be issued against the President of the United States to compel him to perform a merely ministerial duty….
1247. Para 28 of Halsbury’s Laws of England (4th Edn.), Vol. I, page 32 reads:
28. Duty and discretion. The repository of a statutory power may be endowed with a discretion whether to act, and, if so, how to act. A discretionary power is typically conferred by words and phrases such as “may”, “it shall be lawful”, “if it thinks fit” or “as it thinks fit”,. A statutory discretion is not, however, necessarily or, indeed, usually absolute: it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise; or a duty to act when certain conditions are present, but a discretion how to act. Discretion may thus be coupled with duties. On the other hand, duty unaccompanied by any discretion requires action in a prescribed manner and form to be taken when the conditions precedent exist; performance of such a duty is a mere ministerial act.
1248. It is true that the words in Article 216 of the Constitution are undoubtedly empowering, ‘but it has been so often decided as to have become an axiom that in public statutes words only directory, promissory or enabling may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice”. (Vide R v. Tithe Commissioners (1849) 14 QB 459 at p. 474. Earl Cairns said in Julius v. Bishop of Oxford (1880) 5 AC 214 at pp. 222-223), construing the words (it) ‘shall be lawful’ thus:
But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.
1249. In Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694, the House of Lords had to construe the provisions of the Agriculture Marketing Act, 1958 which provided for a committee of investigation to be constituted, which was to consider and report on certain kinds of complaint “if the Minister in any case so directs”. The complaint of the appellants who were members of the south east regional committee of the Milk Marketing Board was that the board’s terms and prices for the sale of milk to the board did not take fully into account the variations between the producers and the cost of bringing milk to a liquid market. In effect the complaint was that the price differential worked unfairly against the producers in the popular south-east region where milk was more valuable, the cost of transport was less and the price of laud was higher. There had been many previous requests to the board but these had failed to get the board in which the south-east producers were in a minority to do anything about the matter. The Minister declined to refer the matter to the committee. Thereafter the appellants applied to the Court for an order of mandamus commanding the Minister to refer the complaint to the Committee for investigation. The Divisional Court made an order against the Minister. But the Court of Appeal by a majority (Diplock and Russel L JJ. Lord Denning M. R. dissenting) set aside the order of the Divisional Court On further appeal to the House of Lords, the appeal was allowed and the case was remitted. The House of Lords held that the complaint was a substantial and a genuine complaint, neither frivolous, repetitive nor vexatious, the reasons of the Minister for not referring the matter to the Committee of investigation namely that the complaint raised wide issues, that his reasons were unfettered so that in effect it was sufficient that he should bona fide have considered the matter, were not good reasons in law, and indeed left out of account the merits of the complaint and showed that he was not exercising his discretion in accordance with the intention of Section 19 of the Act of 1958. The matter was remitted to the Queen’s Bench Division to require the Minister to consider the application of the appellants in accordance with law. Lord Upjohn in his concurring judgment observed that even if the words in a statute conferred an unfettered discretion on the Minister, it ought not to make any difference in this case. He said at pages 718-719 thus:
My Lords, I believe that the introduction of the adjective “unfettered” and its reliance thereon as an answer to the appellants’ claim is one of the fundamental matters confounding the Minister’s attitude, bona fide though it be. First, the adjective nowhere appears in Section 19, it is an unauthorised gloss by the Minister. Secondly, even if the section did contain that adjective, I doubt if it would make any difference in law to his powers, save to emphasise what he has already, namely, that acting lawfully he has a power of decision which cannot be controlled by the courts; it is unfettered. But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the, executive, namely that in exercising their powers the latter must act lawfully, and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion on the Minister rather than by the use of adjective.
1250. The importance of the decision in Padfield’s case (1968) 1 All ER 694 (supra) was underscored by Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971) 2 QB 175 at p. 190 thus;
The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations, which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture Fisheries and Food (1968) AC 997 which is a landmark in modern administrative law.
1251. Notwithstanding the principle of separation of powers found entrenched in the Constitution of the United States of America, as can be seen from the last part of para 141 of Vol. 52 of the American Jurisprudence 2d. under the title ‘Mandamus’ if it is the constitutional or statutory duty of a governor or the President to exercise his discretion with respect to a certain matter he may be required by mandamus to do so but the manner in which he has to discharge that duty cannot be directed by the courts. As observed in the English decisions referred to above it is manifest that a statutory discretion is not necessarily or indeed usually absolute, it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision . is taken, whether to act and how to act. I am of the view that the power conferred on the President by Article 216 of the Constitution to appoint sufficient number of Judges is a power coupled with a duty and is not merely a political function. In the instant case ordinarily the court would have been reluctant to issue any mandamus to the Government to comply with the duty of determination of the strength of Judges of High Courts. But having regard to the undisputed total inadequacy of the strength of Judges in many High Courts, it appears to be inevitable that the Union Government should be directed to determine within a reasonable time the strength of permanent Judges required for the disposal of cases instituted in them and to take steps to fill up the vacancies after making such determination.
1252. At this stage it should be mentioned that Shri P.R. Mridul made a statement on behalf of the Minister of Law, Union of India in the course of his arguments as follows:
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.
The Union Government has also decided that ordinarily further appointments of Additional Judges will not be made for periods of less than one year.
PART XIII 1253. For the reasons given above, I am of the view that the Union Government, which has the responsibility of appointing sufficient number of Judges in every High Court should be directed to review the strength of permanent Judges in every High Court, to fix the number of permanent Judges that should be appointed in that High Court on the basis of the workload and to fill up the vacancies by appointing permanent Judges. While making these appointments, the Union Government should first consider the cases of the additional Judges who are now in office for appointment as permanent Judges in those vacancies. A writ in the above terms shall be issued to the Union Government All the other reliefs prayed for in these petitions are refused, There shall be no order as to costs.
PART XIV 1254. In the course of the hearing of these cases several other questions of great importance touching the administration of Justice such as the conditions of service of judicial officers, particularly of the members of the subordinate judiciary, their salaries and allowances, housing conditions etc. which needed to be looked into very urgently came up for discussion. Similarly many facets of the conduct of Judges and of lawyers were also discussed. During the hearing many useful remarks came to be made both on the side of the Bar and on the side of the Bench. AH this exercise was done with a view to emphasising the importance of the independence of the judiciary and the independence of the Bar which are fundamental to a Republican Constitution whose main characteristic ought to be virtue. An observation of David Hume is worthy of note here. He said:
To balance a large State of society whether Monarchical or Republican, on general laws, is a work of so great difficulty that no human genius however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many should unite in this work; experience must guide their labour; time must bring it to perfection; and the feeling of inconvenience must correct the mistakes which they inevitably fall into in their first trials and experiments.
1255. We have come across in these cases many such mistakes, though committed honestly without realising the import or importance of some of the provisions of the Constitution. Perhaps there was no occasion to think about them so far. It is hoped that at least hereafter in any step that is taken in the matter of appointment of Judges, the clear implications of the Constitution are kept in view by all concerned.
1256. These cases have made us think about ourselves and our learned brothers in the superior judiciary of the country. We are made to realise that we are all mortals with all the human frailties and that only a few know in this world the truth behind the following statement of Michel De Montaigne: “Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track”. It is true that the Judges of the High Courts and the Supreme Court hold their tenure not at the pleasure of the President but till they attain the prescribed age of retirement; that their removal is possible only after following an elaborate procedure: that their salaries and allowances and pension are charged on the consolidated funds of the States or of the Union; that no discussion can take place in the legislatures with respect to their conduct in the discharge of their duties except on a motion for their removal; that they have the power to punish a person for contempt of court and they are protected by a host of other provisions of law which arc intended to make them feel and to remain independent of any external agency such as the executive. These, as far as they go, are necessary for ensuring the independence of the judiciary. But if the judiciary should be really independent something more is necessary and that we have to seek in the Judge himself and not outside, A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill-will, hatred and contempt and fear and recklessness. In order to be a successful Judge these elements should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty. These curbs can neither be bought in the market nor Injected into human system by the written or unwritten laws. If these things are there even if any of the protective measures provided by the Constitution and the laws go the independence of the judiciary will not suffer. But with all these measures being there still a Judge may not be independent. It is the inner strength of Judges alone that can save the judiciary. The life of a Judge does not really call for great acts of self-sacrifice; but it does insist upon small acts of self-denial almost every day. The following sloka explains the true traits of men with discretion which all Judges should possess:
(Let men trained in ethics or morality, insult or praise; let lakshmi (wealth) accumulate or vanish as she likes; let death come today itself or at the end of a yuga (millennium), men with discretion will not deflect from the path of rectitude).
1257. This is only an ideal. It is difficult to attain it but every Judge should at least endeavour to set his eyes on that goal.
BY THE COURT 1258. In view of the majority decision all the transferred cases and writ petitions are dismissed with no order as to costs.
