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

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

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

has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion c begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrari- ness . ......... It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of law and of men ..........: xxx xxx xxx D Another defmition of rule of law has been given by Friendrich A Hayek in his books : "Road to Serfdom" and " Constitution of Liberty". It is much the same as that propounded by the Franks Committee in England : E "The rule of law stands for the view that decisions. should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will known where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It F is therefore unpredictable, the antithesis of the decision taken in accordance with the rule of law." xxx xxx xxx If it is contrary to the rule of law that discretionary authority should be given to government departments or G public officers, then there is no rule of law in any modern State. ....... it is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the decision.

H Leaving aside these extravagant versions of rule of law,

ADVOCATES ASSN. v. U.O.L [VERMA, J.) 745

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

(emphasis supplied) D (pages 136-37)

It is, therefore, realistic that there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper govenance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretion- ary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation be- tween them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions H

746 ' SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

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

It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was B observed therein, as under : .: "In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of "consultation" has c to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital....... . The appointment is rather the. result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any 'power' or 'right' to appoint Judges. D It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories ....... What Endmond Bruke said is to be recalled. :

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

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

ADVOCATES ASSN. v. U.0.1. [VERMA, J.) 747

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

Whatever the Constitution may or may not provide, the welfare B of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. ..... . If the people who are elected are capable and men of character and integrity, they would be able to make the beat even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is C a lifeless thing. It acquires Zife because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language dif- D ferences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can on!y hope that the country will throw up such men in abundance. ...... In India today I feel that the work that confronts us is even more difficult than the work which we had when we ware engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and ·fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which Wt' have succeeded in liberating."

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

The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have H

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A bren duly heeded by the functionaries entrusted with the constitutional ohligation of properly composing the higher judiciary, and ensuring its satisfactory functioning, for the administration of justice in the country. The adverse agnesauence of this failure is manifested in many ways.

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

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

ADVOCATES ASSN. v. U.O.I. [VERMA, J.] 749

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

In S.P. Gupta, the majority comprising of Bhagwati, J. (as he then was), Fazal Ali; J., Desai, J. and Venkataramiah, J. (as he then was), took the view, in substance that the opinion of the Chief Justice of India does not have primacy in the matter of appointments of Judges of the Supreme Court and the High Courts; that the primacy is with the Central Govern- ment which is to take the decision after consulting all the constitutional functionaries; and the Central Government is not sound to act in accord- C ance with the opinion of all the constitutional functionaries consulted, even if their opinion be identical. It was also held in S.P. Gupta that for initiation of the proposal for appointment of a Judge of the Supreme Court or a High Court, there could not be a blanket embargo on the executive initiating the proposal, even though it would be appropriate th;:-t the executive's 1ight to D initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Court or the Chief Justice of India. It is this view of the majority in S.P. Gupta and, particularly, the same literal meaning given to the word 'consultation' in Articles 124(2) and 217(1) in relation to all consultees, together with the final authority given to the Central Govern- E ment in the matter of appointments, which gives rise to the occasion for its reconsideration.

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

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

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

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

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

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

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

Provided further that -

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

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

G xxxx xxxx xxxx

216. Constitution of High Courts. - Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

H 217. Appointment and conditions of the office of a Judge of a

ADVOCATESASSN. v. U.0.1.[VERMA,J.) 751

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

Provided that -

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

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; D (c) the office of a Judge shall be vacated by his being ap- pointed by the President tot be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within t11e territory of India. E (2) ·········· (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after con- sultation with the Chief Justice of India and the decision of the President shall be final. F "222. Transfer of a Judge from on High Court to another.- (1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. G (2) When a Judge has been or is so transferred, he shall during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such com- pensatory allowance as may be determined by Parliament by law H

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

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

PRIMACY OF THE CHIEF JUSTICE OF INDIA

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

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

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

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

ADVOCATES ASSN. v. U.O.I.[VERMA,J.] 753

The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector. B The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate.

For this reason, it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other words, primacy should be in him who qualifies to be treated as the 'expert' in the field. Comparatively greater weight to his opinion may then be attached.

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

Appointments

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

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

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

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

"101. Constitution of high courts. •

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

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

xxx xxx xxx

Then, in the Government of India Act, 1935, provision for the establishment and constitution of the Federal Court was made in Section F 200, while the constitution of High Courts was provided for in Section 220. The relevant parts of these Sections were :

200. Establishment and constitution of Federal Court. - (1) ............ .

(2) Every judge of the Federal Court shall be appointed by His G Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty-five years"

Provided that -

(a) a judge may by resignation under his hand addressed to the H Governor-General resign his office;

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 755

(b) a judge may be removed from his office by His Majesty by A warrant uncfer the Royal Sign Manual on the ground of mis- behaviour or of infirmity of mind or body, if the Judicial Committee of the Privy Council, or reference being made to them by His Majesty, report that the judge ought on any such ground to be removed. B xxx xxx xxx

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

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

Provided that -

(a) a judge may, by resignation under his hand addressed to D the Governor resign his office :

(b) a judge may be removed from his office by His Majesty by warrant under the Royal Sign Manual on the ground of mis- behaviour or of infirmity of mind of body if the Judicial Committee E of the ~rivy Council on reference being to them by His Majesty, report that the judge ought on any such ground to be removed.

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

xxx xxx xxx

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

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

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

This clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown, is a sure indication that irrespective of the question of primacy of the Chief Justice of India. in the matter of appointments, the Constitutional provisions cannot be construed to read therein the absolute discretion of primacy of the Government of India to make appointments of its choice, after completing formally the require- ment of consultation, even if the opinion given by the consultees of the judiciary is to the contrary. In our opinion, this departure made in the Constitution of India from the earlier scheme under the Government of India Acts, is itself a strong circumstance to negative the view that in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the G Chief Justice of India all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court.

The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India vis-a-vis H the opinion of the other consultees and the Central Government.

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 757

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

............. It would there/ore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in. regard to the appointment of the judge in the High Court or the Supreme Court. ........ Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion. ............ . E (emphasis supplied) (pages 541-42)

It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief p Justice is best epuipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an ind~pendent judiciary. At the same time, the phraseology used indicated that giving absolute G discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there ·should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should H

758 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' B instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less ~o the executive, which earlier had absolute discretion under the Government of India Acts.

C The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very goods reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.

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

"One of the most important responsibilities of a Lord Chancellor in our democracy is for judicial appointments. It is my duty to ensure that neither political bias, nor personal favouritism, nor

ADVOCATES ASSN. v. U.O.L [VERMA,J.] 759

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

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

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

The majority view in S.P. Gupta to the effect that an executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which punishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a F matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executivein the matter of appointment of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the courts, have to face the consequence of any unsuitable G appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and H

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

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

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

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

If it were to be held that, notwithstanding the requirement of Articles 124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the view of the Chief H Justice of India, and the President is bound by Article 74(1) to act in

ADVOCATES ASSN. v. u.o.r. [VERMA, J .] 761

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

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

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

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

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

B The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, inde- C pendent ar.d fearless judge. Several attributes together combine to con- stitute such a personality. Legal expertise, ability to handle cases, proper personal ~onduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on oc- casion directly from the Bar. The arena of performance of those men are the courts, it is, therefore, obvious that the maximum opportunity for adjudpng their ability and traits, is in the courts and, therefore, the Judges are b~st suited to assess their true worth and fitness for appointment as judgis. This is obviously the reason for introducing the requirement of conrultation with the Chief Justice of India in the matter of appointment of ill Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Jwtice of India and the Chief Justice of the High Court who get such lliormation (rom various sources. There may however, be some personal trait of an individual laWyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief 1 ustice of the High Court, and which may be relevant for assessing his

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

ADVOCATES ASSN. v. U.O.l. [VERMA, J.] 763

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

It has been indicated that the judiciary being best suited and having the best opportunity to assess the true worth of the candidates, the con- B stitutional purpose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more significant role in the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context. c It is of considerable significance that Bhagwati, J. (as he than was), after subscribing to the majority view in S.P. Gupta, speaking for the unanimous view of the Constitution Bench, in Ashok Kumar Yadav and Others v. State of Haryana and Others, [1985] 4 SCC 417, stated thus : D "We would also to point out that in some of the States, and the State of Haryana is one of them, the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the Judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the E Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for :he: Judi~ial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected, because if we do not have good, competent and honest Judges, the democratic polity of the State itself will be in serious peril. It is therefore essential that when selections to the Judicial Service are being made, a sitting Judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting.High Court Judge, knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reason for not accepting such advice and such strong and cogent reasons must be recorded H

764 SUPREME COURT REFORTS (1993) SUPP. 2 S.C.R.

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

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

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

ADVOCATES ASSN. v. U.0.1. I VERMA, J.] 765

Justice of India; and it is this opinion which has primacy. A The rule of law envisages the area of discretion to be the minimum requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring collective B decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior Judges to high constitutional functionaries; the greatest significance at- tached to the view of the Chief Justice of India, who is best equipped to c assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking info account the views of some of his colleagues; and the executive being permitted to prevent and appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scneme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.

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

Transfers

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

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

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

The power of transfer can be exercised only in 'public interest' i.e. C for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Article 222, any transfer in accordance with the recommenda- tion of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of this tenure. This applies. equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not.

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

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

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 767

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

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

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

The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the G President of the Constituent Assembly. The hereinafter mentioned emerg- ing from the actual practice and crystallised into conventions - not exhaus- tive - are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers. H

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

A Appointments

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

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

In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two seniormost Judges of the High Court.

The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge duty objectively to select the best available persons as Judges of the Supreme Court and the

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 769

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

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

(3) Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar sig- C nificance. It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appoint- ment and would avoid any distortion in the seniority between the appoin- tees drawn even from the same High Court. The likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented.

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

This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the H

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

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

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

(6) The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appoint- ment recommended by the Chief Justice of India to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional case, where the facts justify, " recommendee of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of· the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter.

It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the' primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief H Justice of India, which is the real object of the priqpcy of his opinion and

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 771

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

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

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

(9) In order to ensure effective consultation between all the constitu- tional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that H

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A basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinion of all Judges consulted by him, as a part of the record.

B Expression of opinion in writing is an in built check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The fmal opinion of the Chief Justice of India, given after such effective consultation between the con- C stitutional functionaries, as primacy in the manner indicated.

(10) To achieve this purpose, and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme court, and the Chief Justice of the High Court in thf- case of the High Courts. This is the general D practice prevailing, by convention, followed over the years, and continues to be the general rule even now, after S.P. Gupta. The executive itself has so understood the correct procedure, notwithstanding S.P.Gupta, and there is no reason to depart from it when it is in consonance with the concept of the independencey of the judiciary. E (11) The constitutional functionary meant by the expression 'Governor' in Article 217(1), is the Governor acting on the 'aid and advice' of his Council of Ministers in accordance with Article 163(1) read with Articles 166(3) and 167.

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

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 773

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

(14) The process of appointment must be in!tiated well in time to ensure its completion at least one month prior to the date of an an- D ticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief Justices of the High Courts and the Chief Justice of India, to avoid the institution being rendered needless for any significant period. In the case of appoint- E ment of the Chief Justice of a High Court to the Supreme Court, the appointment of the successor Chief Justice in that High court should be made ordinarily within one month of the vacancy.

(15) Apart from the two well known departures, <.ppointments to the p office of Chief Justice of India have, by convention, been of the seniormost Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the seniormost Judge to hold the office, which alone may permit and justify a G departure from the long standing convention. For this reason, no other substantive consultative process is involved. There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary. H

774 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A Transfe1~

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

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

( 4) It may be desirable to transfer in advance the seniormost judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice. In transfer of puisne Judges, parity in proportion of transferred Judges must be maintained between the High H Courts, as far as possible. ·

ADVOCATES ASSN. v. U.0.1.[VERMA,J.] 775

(5) The recommendations in the Report of the Arrears Committee A (1989-90) mention certain factors to be kept in view while making transfers to avoid any hardship to the transferred Judges. These must be taken into account.

JUSTICIABIL/TY B Appointments and Trans[ers

The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decision, which is ordinarily needed as · a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effecti~e consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness. E

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

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

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

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

Article 216 deals with constitution of High Courts. It provides that very High Court shall consist of a Chief Justice and 'such other judges as the President may from time to time deem it necessary to appoint.' To enable proper exercise of this furction of appointment of 'other Judges', it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filing. This is essential to ensure speedy disposal of cases, to 'secure that the operation of the legal system promotes justice' - directive principle 'fundamental in the governance of the country' which, it is the duty of the State to observe in all its action; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, result- ing in negation of the rule of law by the law' delay must be justiciable, to p compel performance of that duty.

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

ADVOCATES ASSN. v. U.0.1. [VERMA, J.] 777

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

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

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

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

(2) Initiation of the proposal for appointment in the case of the F Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the G transfers of Judges/Chief Justices of the High Courts must invariably be made.

(3) In the event of conflicting op1mons by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India and formed in the mannet indicated, has primacy. H

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

A (4) No appointment of any Judge to the Supreme Court or any High Court can be mr.de, unless it is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be m~.de. However, if the stated reasons are not •' accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recom- mendation by the Chief Justice of India, the appointment should be made as a healthy convention.

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

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

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

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

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

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

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

(13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated.

ADVOCATES ASSN. v. U.O.L(PANDIAN,J.] 779

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

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

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

(1) Whether the present day 'Solomon's throne (symbolizing the majesty of our justice system) is fully supported by the 'Lion's (symbolizing the legislature and executive) on both sides?

(2) Weather the 'Lions' are still under the 'throne'? F

(3) Whether, the 'Lions' are circumspected from checking or opposing any of the points of sovereignty of the judiciary (i.e. judicial sovereignty)? . G (4) Whether it is for the 'Lions' to pronounce the name of 'Solomon' and his successor to occupy the throne?

(5) Whether 'Solomon' has any right of proposing any celebrated structural reform to his 'House' (symbolizing the judicial structure) or is it for the 'Lions' to make such proposal to 'Solomon's House' H

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

A without reference to Solonon?

(6) Is it for the 'Lions' to make any alteration to the structure of the Imperial State of 'Solomon's House' and propose sweeping reforms whether constitution and composition of a 'Kingdom of Solomon' - even without reference to Solomon or even inexcusably B ignoring any suggestion of Solomon?

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

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

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

ADVOCATES ASSN. v. U.O.l. [P ANDIAN, J.] 781

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

The relevant passage of the above Order reads thus : B

"Returning to the views of the majority, we may set out the views of these learned Judges in the Judgrnent as to 'consultation' and primacy of the position of the Chief Justice of India which would in our opinion require reconsideration c The questions on the basis of the above Order that arise for con- sideration are :

(1) Whether the opinion of the Chief Justice of India in regard to the appointment of Judges to the Supreme Court and High Courts D as well as in regard to the transfer of High Court Judges, is entitled to primacy? and

(2) Whether the matters including the matter for fixation of the Judge-strength in the High Courts are justiciable? E I had the advantage of perusing the judgment of my learned brother, J.S. Verma, J. Though I am in respectful agreement with most of the conclusions arrived at by him, yet having regard to the important constitu- tional issues involved in this case, I would like to give may own reasons for those conclusions and also add some of my views on a few other points. F

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

It will be grotesque if any such criticism is ever levelled against the proposed reconsideration of the decision in question or any bad motive attributed thereto. H

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

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

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

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

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

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

The exploration of the new principles are essential in those areas no before explored; more so when the old principle are found to be to responding to the unresolved and unforeseen modern challenges or to have become inapplicable to the new situations or found to be unsound. At the same time, it is not to be lost sight that in the above institutional task, the Court does not create any new right nc l known to the court does not create any new right not known to the constitutional text or history but merely

ADVOCATES ASSN. v. U.O.I. [P ANDIAN, J.] 783

discovers and announces only the existing right so far hidden under the surface on a better understanding of the values of the underlining intend and spirit of the Constitution in the light of a new set of conditions. The resultant corrolary would be that the old legal concept and such principles may be swept away by a new concept and under a new set .of conditions or a fresh outlook. B The proposition that the provisions of the Constitution must be confined only to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason - firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed and thirdly, still others may be left over as controver- sial issues, i.e. termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the framers at the time of framing the constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.

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

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

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

In a recent Judgment in S. Nagaraj & Ors. etc.etc. v. State of Kar- B nataka & Anr, 1993 (5) Judgment Today 27 to which one us (S. Ratnavel Pandian, J) was party, the following observation has been made while emphasising the power of this either recalling or reviewing its own order :

"Rectification of an order thus stems from the fundamental prin- ciple that justice is above all. It is exercised to remove the error c and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive D power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review and order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the E Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court F Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if'it is satisfied that it is necessary to do so for sake of justice." G In the same case, B.P. Jeevan Reddy, J. in his separate judgment has stated thus :

"It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders H were passed on a wrong or mistaken assumption of facts and that

ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 785

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

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

Case laws, including many leading decisions of the Constitution F Benches wherein the earlier views expressed and the principle enunciated have been reconsidered and over-ruled are not wanting. In this connection, it would be germane to refer to an illuminating decision of the Supreme Court of Canada in Queen v. Beauregard, [1987] LRC (Constitution 180) wherein Chief Justice Dickson rejected the "Strict Construction Argument" in interpretation of constitutional provisions (the Canadian constitution, G Act 1867, s-100) and observed thus: