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

Bhagwati, J in Sankal Chand has wholly endorsed what Krishna Iyer, J. has observed about the nature and intent of the expression, 'consultation with the Chief Justice of India' occurring in clause (1) of Article 222. G Bhagwati, J (as the learned Chief Justice then was) in Gupta's case has articulated that Articles 124 (2) and 217 (1) speak of only constitutional functionaries having a consultative role and held thus :

"........... It is not an unfettered power in the sense that the Central H Government cannot act arbitrarily without consulting the constitu-

ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 829

tional functionaries specified in the two Articles but it can act only after consulting them and the consultation must be full and effec- tive· consultation.

The question, immediately arises what constitutes 'consultation' within the meaning of clause (2) of Article 12 and clause (1) of Article 217. Fortunately, this question is no longer res integra and it stands concluded by the decision of this Court in Sankalchand Seth's case (supra) related to the scope and meaning of 'consult- ation' in clause (1) of Article 222 ........................................................ .

c Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them D taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge. But while giving the fullest meaning and effect to 'consultation' it must be borne in mind that it is only consultation which is provided by Government and consultation cannot be equated with concurrence .............................. E

It is, therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitu- F tional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government as entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge. So also where a Judge of the Supreme Court is to be appointed, the Chief Justice G of India is required to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Justice of India though it is entitled to great weight as the opinion of the head of the Indian Judiciary ................................................................................ H

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

It is clear from the language of clause (1) of Article 217 that the appointment of a Judge of a High Court can be made by the President only after consultation with the Chief Justice of the High B Court, the Governor of the State and the Chief Justice of India and, according to the interpretation placed by us, consultation within the meaning of this Article means full and effective consult- ations with each of the three constitutional functionaries after placing all relevant material before them. c Fazal Ali, J in Gupta's case has agreed with the view expressed by Bhagwati, Desai and Venkataramiah, JJ as regards the exposition of the concomitants of consultative process.

Desai, J has accepted the view expressed in Chandramouleshwar D Prasad v. Patna High Court (supra) as being a good law even for Article 217(1).

Pathak, J (as the learned Chief Justice then was) has expressed his view stating :

E "At the same time I am unable to accept the content10n that as the Constitution stands today, the President is obliged in all cases to agree with a recommendation in which the Chief Justice of the High Court and the Chief Justice of India have concurred. During the Constituent Assembly Debates a proposal was made by a F member that the appointment of Judges should require the con- currence of the Chief Justice of India (although that suggestion was made in connection with the appointment of Judges of the Supreme Court), but that proposal was not accepted. The Law Commission of India in its Fourteenth Report, Vol. 1 p.7 surveyed the machinery for appointing a Judge of a High Court and con- G sidered it desirable that the provision in clause (1) of Article 217 should be altered to provide for 'not merely consultation with the Chief Justice of India but his concurrence in the proposed appoint- ment.' That recommendation has not borne fruit and we are concerned with the position which prevailed then and continues today."

ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.) 831

In Subhash Shanna (supra), Ranganath Mishra, CJ speaking for the three-Judges Bench explained the significance of the word 'consultation with the Chief Justice of India' as appearing in Article 124(2) and 217 (1) as follows :

"The word 'consultation' is used in the constitutional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitation, shorn of its constitutional background and purpose, is to borrow Justice Frankfurther's phrase "to stick in the bark of words ........................................................................................................ C

'Consultation' should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpreta- tion."

Mr. F.S. Nariman, the learned senior counsel has submitted that the meaning of the expression 'after consultation with' must be determined in the constitutional context and conditions only by the true nature and object of such consultation. In support of this submission, he places reliance on Port Louis Corporation v. Attorney General, 1965 AC 1111 at 1112 P.C. wherein Lord Morris has pointed out that the nature and object of con- sultation must be related to circumstances which call for it. F

,, He continues to state that when no consultation is provided for with regard to any other constitutional office - i.e. other than the judicial office, the consultation which is required in the Constitution with referei;ice only to judicial office (as contrasted with other high ranking constitutional offices) shows that it does not bear the ordinary literal meaning but it G means something more than merely seeking an advice.

According to him, the word 'consultation' especially in the context of the authorities constitutionally required to be consulted ·cannot be dissociated from the- advice sought, and given, as a result of such consult- H

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

A ation and that the requirement of prior consultation in respect of judicial offices in the Constitution was truly intended to be a reservation or limitation on the power to appoint and that it is not merely a condition precedent to the exercise of the power to appoint. It is further submitted that the link between the advice given as a result of the consultation and B the ultimate appointment of the person about whom there is consultation for judicial office, is inextricable making the entire process of appointment

r of Judges under the constitution as one 'integrated process'. In this con- nection, our attention was drawn to the illustrative observation of Subba Rao, 0 speaking for the Constitution Bench in Chandra Mohan v. State of C Uttar Pradesh & Ors., (1967] 1 SCR 77 at 83 wherein, he had said : "To state it differently, if is empowered to appoint in consult- ation with C, he will not be exercising the power in the manner prescribed if he appoints in consultation with and C."

D This passage, according to Mr. Nariman indicates that the advice tendered by the constitutional authority required to be consulted, of a binding character, though it does not specifically decide so.

He cites a decision of the Supreme Court of Tennessee in Colyar v. E Wheeler et.al. mentioned in Words and Phrases - permanent Edition Volume 9, in which the following principled are laid down:

"1. Where, by a post-nupital settlement, a husband and wife con- veyed to a trustee all of the wife's property, reciting that the purpose of the deed was that the trustee might hold the legal title F for the wife's sole and separate use, with the absolute right of disposition as she might choose on consultation with said trustee, such conveyance created an active trust, the imposed on the trustee the duty of preserving the property for the wife's separate use during coverture.

G 2. Where a married woman's property was conveyed to a trustee to hold the legal title for her sole and separate use, with the absolute right of disposition as she might choose, on consultation with said trustee, the provision requiring consultation was equivalent to a requirement of the consent of the trustee, to be evidence by his signature to the conveyance and hence mortgages

ADVOCATES ASSN. v. V.O.l. [PANDIAN, J.] 833

executed by the wife and her husband without the trustee's consent, and in which he did not join were void,"

Mr. Ram Jethamalani, learned senior counsel expressed his grievance that the principles laid sown in Chandra Mohan's case (supra) were not appreciated by the learned Judges while dealing with Shamsher B Singh's case who in his submission, have ignored the principle of har- monious construction which was articulated in K.M. Nanavati v. State of Barnaby, (1967] 1 SCR 97. According to him, the judgment in Gupta's case may be regarded as per incuriam. He articulates that the expression 'con- sultation' is itself flexible and in a certain context capable of bearing the meaning of 'consent' or 'concurrence.' C

According to Mr. Kapil Sibal, the learned senior counsel, there is no mention of Government in Article 124 (2) but this Article refers only to the President which means the President acting with the aid and advice of the Government, namely, the Council of Minister~. He brought to our notice certain observations of Bhagwati, J in Gupta's case firstly, "It is obvious on a plain reading of clause (2) of Article 124 that it is the President which in effect and substance means the Central Government which is empowered by the Constitution to appoint Judges of the Supreme Court"; secondly "the power of appointment resides solely and exclusively in the Central Government" and thirdly, "the opinion of the Governor of the State which means State Government... ......".

By the above observation in Gupta's case, according to him this Court has erred in reading into the words, The President' and 'the Governor of the State' as meaning 'the Central Government' and 'the State Government' F respectively'' which is neither the true intent of the Constitution nor war- ranted in the field of appointment of Judges. He regrets that where there are guide to nuts and bolts, it is highly distressing and derlorable that there are no canalised guidelines as regards the method of selection and appoint- ment of Judges to the higher juJiciary. G

\' Mr. K. Parasaran, the learned senior counsel appearing on behalf of the respondents strenuously and fervently refutes the above arguments stating that when the Constitution points out three functionaries including the CJI who have to be consulted by the President, there is no question of H

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

A giving primacy to the opinion of the Chief Justice of India over and above the opinion of the other consultees with regard to the same subject matter under the same context. He states that there could be no reason to give primacy to the opinion of the CJI expressed during the consultation except on the principle of so called hierarchy. He adds that the very scheme of B the Constitution not providing for administrative control of the High Courts by the Supreme Court, itself militates against giving primacy to the opinion of the CJI in the process of 'consultation' over the Chief Justice of the High Court who is also one of the ,constitutional functionaries to be consulted by the President as adumbrated under Article 217(1). Similarly, C the Executive also has an important role to play in .the process of consult- ation since the Executive may have knowledge as to the qualities and affiliations and personal integrity of the selectee other than his/her legal ability and professional attainments. In support of his submission he referred to the debates of the Constituent Assembly and to certain proposed amendments to the draft Article which, according to him, would D show that 'consultation' does not mean 'consent' or 'concurrence'. For understanding and appreciating his arguments, we would like to reproduce the proposed amendments.

Shri B. Pecker Sahib moved the following amendment to Article 103: E "(2) Every Judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India, and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after F consultation with the Judges of the Supreme Court and the Chief Justices of the High Courts in the States and every Judge of the Supreme Court shall hold office until he attains the age of sixty- eight years."

G Similarly, Mr. Mahboob Ali Baig Sahib proposed the following amendment:

H " That in the first proviso to clause (2) of Article 103, for the words 'the Chief Justice of India shall always be consulted' the words 'it shall be made with the concurrence of the Chief Justice of India's be substituted." '

ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.) 835

To the draft Article 193 with respect to the appointment of High A Court Judges, Mr. B. Pocker Sahib suggested the following amendment :

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

All the above amendments were rejected after a long deliberation in the Constituent Assembly. Mr. Parasaran urges that when those amend- C ments expressly providing for the concurrence of the CJI were rejected and the present Article 124 and 217 have been enacted placing all the constitu- tional functionaries including the CJI as only consultees, no interpretation can be justifiably given that consultation with the CJI must be given primacy. According to him, if such a construction is given to the word D 'consultation', we would be rewriting the Articles. Then he cites an obser- vation from the Special Courts Bill [1979) 2 SCR 476 wherein the word 'consultation' was not construed 'concurrence' but only as 'consultation' as ruled in Sankal Chand. That observation reads thus : • "...... the process of consultation has its own limitation and they are E quite well known. The obligation to consult may not necessarily act as a check on the executive ........"

Referring to the new clause (4) to Article 22 which is a proposed substitution by the Constitution {Forty-fourth} Amendment Act, 1978 {for which date of enforcement is yet to be notified} in relation to the composi- F tion of the Advisory Board, reading "Advisory Board constituted in accord- ance with the recommendations of the Chief Justice of the appropriate High Court", it has been asserted by Mr. Parasaran that this newly proposed clause is introduced bearing in mind the interpretation made by this Court in Sankal Chand and Special Courts Bill that consultation does G not mean concu"ence. He states that this is, therefore, a case of legislative ratification by tlie constituent power of the interpretation made by this Court as to the meaning of the word 'consultation'. For principle of legislative ratification, he cites the ~following decisions, {1} Commissioner of Income Tax v. Basi Dhar & Sons, [1985) Suppl. 3 SCR 850, (2) State of H

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

A Tamil Nadu v. Neelai Cotton Mills, [1990] 2 SCR 33 at 38-39, (3) F.S. Gandhi v. Commissioner of Wealth Tax, [1990] 2 SCR 886 at 897, (4) Keshavji Ravji v. Commissioner of Income Tax, [1990] 1 SCR 243 at 257.

After having made reference to the proposed amendments to Ar- ticles 103 and 193 of the draft Constitution Mr. Parasaran has recalled the B reply of Dr. B.R. Ambedkar while winding up the debate on this topic concerning judiciary which reads thus :

"With regard to the question of concurrence of the Chief Justice, it seem to me that those who Advocate that proposition seem to c reply implicit both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appoint.nent of Judges is really D to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition."

According to Mr. Parasaran, the entire debate on this topic in the E Constituent Assembly, the rejection of the proposed amendments and the texture of the reply given by Dr. B.R. Ambedkar, in this context, are indicative of the fact that the framers of the Constitution designedly used the expression 'consultation? instead of 'concurrence' or 'consent' which in turn shows that the opinion expressed by all the constitutional functionaries during the consultation by the President have equal weightage and none of them can be placed superior to the other.

Mr. Parasaran finally makes a blistering attack against and fends off the petitioners' counsel's arguments stating that it is rather difficult to accept the construction of the word 'consultation' as on behalf of the petitioners and that if such a construction that the primacy should be given to the opinion of the Chief Justice expressed during the consultation, is accepted, then Article 124(2) Main Part will become redundant and otiose. He continues to state that had the intention of the framers of the Constitu- tion been that the consultation with the CJI alone is sufficient, Article 124 H would have been drafted without a proviso reading, that every Judge of the

ADVOCATESASSN. v. U.O.I.[PANDIAN,J.] 837

The learned Attorney General projects the view expressed by Pathak, J (as the learned Chief Justice was) in his minority judgment. According E to him, the circulars as well as the actual practice of the working of the system clearly establishes that the Chief Justice's views in the evaluation by the President should not be treated as one of parity but should be given greater weight. Finally, he emphasizes that the views expressed in Gupta's case are neither basically wrong nor intrinsically defective so as to bring about any radical changes and devise a new method. F

The controversy that arises for scrutiny from the· arguments ad- dressed boils down with regard to the construction of th©-word 'consult- atimi_s. G Incontrovertibly, our Constitution is structured with a wealth of influential and choice words, measured phrases and expressions - the real meaning and message of which are sometimes missed and on many oc- casions, are hidden or unforeseen. However, 'the implication, relevance, signification, spirit and core of that word, as used in the Constitution are H

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

A beyond the range of the interest of a layman.

In Chapter 4 of the Treatise titled, "The Loom of Language'~ it is stated:

"Words are not passive agents meaning the same thing and carrying the same value at all times and in all contexts. They do not come in standard shapes and sizes like coins from the mint, nor do they go forth with a degree to all the world that they shall mean only so much, no more and no less. Through its own has a penuntire of meaning which no draftsman can entirely cut away. It refuses to be used as a mathematical symbol."

In Town v. Eisher, 245 U.S. 418, Mr. Justice Holmes said that "a word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used."

~hagwati, J in Sankal Chand has pointed out that "the words used in a statute cannot be read in isolation, their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context............ The context is of the great importance in the inter- E pretation of the words used in a statute."

The Privy Council in Minister of Home Affairs and Another v. Fisher and another, [1979] All ER 21, has held that a constitutional instrument is a document sui generis to be interpreted according to principles suitable F to its particular character and not necessarily according to the privileges, rules and presumption of statutory interpretation.

The essence of the various decisions of this Court, High Courts as well as foreign Courts is that when we give a liberal construction to a word used in a statute particularly in the Constitution, we must first of all take Q note of the relevant and significant context in which that word is used and then interpret that word in that context with meaningful purpose. If the construction of the word is made only in a literal or lexical meaning, then is every possibility of missing the real intent of the provisions.

H When it is commonly said that words are the daily currency of the

ADVOCATES ASSN. v. U.O.l.[PANDIAN,J.) 839

law, the value of which will never become obsolete; the eirchanged value of those currencies would depend upon the context of their usage. In fact, the word 'consultation' coined in the Constitution in one sense is well suited to the age though the said word has given room for different connotations. We are not deliberately contributing any hyperbolic and exaggerated mean- ing but only the manifested meaning that the currency of the word intends to convey.

In the above background of the constitutional scheme, we shall now examine the relevance and significance of consultation with the CTI in the context of appointment of Judges to the Supreme Court and High Courts. In that context, the derivative meaning of the word would depend not merely on its ordinary lexical definition but greatly upon its contents according to the circumstances and the time in which the word or expres- sion is used. Therefore, in order to ascertain its colour and content, one must examine the context in which the word is used. D The word 'consultation' is used in the context of appointment of Judges to the Supreme Court under Article 124(2) and to the High Courts under Article 217(1). Though such a consultation is not constitutionally required in the case ot appointment of other constitutional appointees, which we have indicated and itemised in the preceding part of this judg- E ment. In Gupta's case, there is a consensus of opinion that consultation does not mean concurrence. In that case, Bhagwati, J in his leading judgment has gone to the extent of holding the words 'President' and the 'Governor' meaning 'the Central Government and 'the State Government' respectively, and that "it would, therefore, be open to the Central Govern- ment to override the opinion given by the constitutional functionaries F required to be consulted and to arrive at its own decision in regard to the appomtment of a Judge of the High Court or the Supreme Court so long as such decision is based on relevant considerations and is not otherwise malafide. G This dictum laid down in Gupta's case is that the power of appoint- ment of Judges rests with the President who will act on the advice given by Council of Ministers after making consultation and upon due considera- tion of the .opinions of the persons consulted. As to the nature of the consultation required, the Constitution does not lay down any specific H

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

A mode, and in fact there is no guideline as pointed out by Mr. Kapil Sibal. But the view has been taken that since the consultation is a mandatory condition precedent, it should be effective which means what (1) the President must disclose all the facts which are necessary for due delibera- tion by the CJI, (2) the CJI must express his opinion with nothing less than the full consideration of the matter on which he is consulted upon the · relevant facts; and (3) the quintessence of consultation being that the two parties must exchange their views and examine the merits of the proposal and counter proposal upon the identical-materials. Vide Sankal Chand.

In this context, a baffling question is as to what would be the effect of non consultation. In State of U.P. v. Manbodhan Lal Srivastava, [1958] SCR 533, while construing the expression 'shall be consulted' occurring in Article 320 (3) held that "Article 320(3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation should not afford him a cause of action in D Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution. See also Ram Gopal v. State of Madhya Pradesh, [1970] 1 SCR 472 and A.N.D. 'Silva v. Union of India, [1962] Supp. (1) SCR 968.

E The question that follows is whether the same view may be taken it the President appoints a puisne Judge of· the Supreme Court without consulting the CJI at all. If the view taken in Srivastava's case (supra) as regards the non-observance of Article 323, is imported in the first proviso to Article 124(2) or in Article 217(1), the answer would be that such F appointment is nevertheless valid notwithstandings the violation of the first proviso. A different conclusion has, however, been taken in Sankal Chand presumably being prompted by the need for judicial independence under the parallel provisions under Article 222(1) as regards the transfer of a High Court Judge. The view taken in that case by Chandrachud, J is :

G "........ .if he proposes to transfer a Judge he must consult the Chief Justice of India before transferring the Judge. That is the nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer.

ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 841

Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the Presi- dent consults the Chief Justice of India."

Krishna Iyer, Jin the same judgment speaking for himself and Fazal Ali, J has expressed his view that "a proper construction of Article 222(1), B having realistic regard to the setting and scheme of the Constitution, leads necessarily to the conclusion that 'consultation' with the Chief Justice of India has, its inesapable component, the securing of the transferee Judge's consent to the transfer." c Bhagwati, J. found himself entirely in agreement with what Krishna Iyer, J has expressed. '

Untwalia, J. while generally agreeing with the view expressed in this regard by Chandrachud, J. added that "no order of transfer can be made by the President without the consultation with the Chief Justice of India." D

Thus, it is seen that the consensus of opinion is that consultation with the CJI is a mandatory condition precedent to the order of transfer made by the President so .that non-consultation with the CJI shall render the order unconstitutional i.e. void. E The above view of the mandatory character of the requirement of consultation taken in Sankal Chand has been followed and reiterated by some of Judges in Gupta's case.

Fazal Ali, J. has held in Gupta's case : F

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

Venkataramiah, Jin Gupta's case has also expressed the same view. G In the light of the above view expressed in Sankal Chand and some of the Judges in Gupta's case, it can be simply held that consultation with the CJI under the first proviso to Article 124(2) as well under Article 217 is a mandatory condition, the violation of which would be contrary to the_ constitutional mandate. H

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

A Before we come to the next phase of the aspect of this matter as to whether the President (which in the opinion of Bhagwati, J. meant the Central Government), can ignore completely the opinion of the CJI and act contrary to his opinion after due consultation, we shall examine the ostensible purport of consultation with the CJI. B The vital role to be played by the CJI in the process of selection of candidates for Judgeship for the superior judiciary is to sponsor and recommend properly fit and competent persons by evaluating their merit and efficiency. It will not be out of place to mention that Shri M.C. Setalvad, the eminent jurist and former Attorney General of India has C expressed his deep resentment in the Fourteenth Report of the Law Com- mission chaired by him, over the existing mode and method of selection of judges, the motivation for their selection, the external forces and influences working on the method and selection of candidates having a bearing on judicial administration. In fact, the Fourteenth Law Commission Report D emphasising the importance of the opinion of the Chief Justice of India recommended the use of the expression 'concurrence' instead of 'consult- ation' thought it agree with the use of the expression 'consultation' so far as Governor of the State is concerned. The relevant portion of Article 217 in the Light of the Amendments suggested read as follows : E "217. (l) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Governor or the State and with the concurrence of the Chief Justice of India, and in the case of appointment of a Judge other than the Chief Justice on the recommendation of Chief F Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224 and in any other case, until he attains the age of sixty years."

See Law Commission Fourteenth Report Page 70 para 9. G It is beyond controversy that merit selection is the dominant method for judicial selection and the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. Besides the above, the hallmarks H Of the most important personal qualifications required are moral vigour,

ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 843

ethical firmness and imperviousness to corrupting or venal influences, humility and lack of affiliation, judicial temperament, zeal and capacity to work. In Texas Law Review (Volume 44) 1966 at page 1068 and 1071, the following passage are found emphasising the desirable qualities of the Judges:

"It is easy to understand why the active judges deem noble inner qualities highly desirable. It is also natural that they should give the highest ratings to good repute, "Good name in man or woman ......... is the immediate jewel" of their souls, Shakespears said, and judges share with you and me a taste for such treasures. As for good health, is there anyone who does not prize it? Nobility C and virtue, good name and well-being - these are never out to place. In a man who wields the power and enjoys the standing of a judge, they are more than welcome. No one seeking judicial office would boast that he lacked any of them, and no appointing authority would look for men without them.......................... While D qualities of the mind were not named as frequent, as qualities of the heart and spirit, intellectual power was not entirely neglected. In the judges' own words, "a capacity for abstract though", "im- agination", "learning", "a retentive memory," "quick thinking", "intellectual curiosity", and "ability to analyze and articulate" deserve attention. E

It would be most appropriate to recall the speech of Sir Winston Churchill while moving a Bill for raising the salary Judges. It reads thus :

"The service rendered by judges demands the highest qualities of F learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than the of ordinary people is required from Judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a con- G tinuous aspect of dignity and conduct." Vide Parliamentary Debates (Hansard) House of Commons Debates dated 23.3.54 Vol. 525 Cols. 1061-62.

In 'The Role of the Trial Judge in the Anglo-American Legal System H

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A 50 ABAJ 125, 127 (1964), Chandler has observed that the Judges "should . not only know the laws of procedure and evidence .................... he must be either to use them functionally in making adroit and incessive rulings." ·

It is befitting, in this context, to describe in short, an outstanding and distinguished Judge, in the words of Shakespears in 'The Merchant of Venice' reading, "A Daniel come to judgment! yea, a Daniel!"

The crucial question that follows for deliberation is who is to honestly and realistically evaluate the required qualities under the appointive system and select "Daniel to sit in the Solomon's chair". Is it the CJI or the executive who has to undertake this process of evaluation and selection?

Unfortunately, we have no systematic set of criteria to evaluate or rate the desirable qualities of the selectees to the judicial office. There are global reactions that there are some patent obstacles and defects in the existing process of selection of Judges and that the present impressionistic evaluation is not a satisfactory tool to use in selecting Judges on merit. It cannot be gainsaid that only those who know what criteria they should adopt in assessing merit, can alone evaluate meaningfully a candidate's merit and select the prospective candidate. While weighing and evaluating the qualifications of the prospective candidate, whose names come to attention, the sponsoring authority has to assess their merit by whatever useful non-bromidic guidelines it could devise based on its longstanding experience both on the Bar and the Bench. That authority could be only the Chief Justice of India and the Chief Justice of the High Court con- F cemed who and who alone can speak of a candidate's professional attain- ments, his learned ability and his legal experience though the executive can speak of the other qualities such as affiliation, personal integrity, antece- dents and background of the candidate. In this connection, it will be worthwhile to mention the observation of Sir Winston Churc.1iill in the House of Commons that "Perhaps only those who have led the life of a G Judge can know the lonely responsibility which rests upon him." Vide Parliamentary Debates (Hansard) of Commons Debates dated 23.3.54 Vol. 525, Col. 1061. The recipe regarding the professional qualifications could be evaluated only by the Chief Justice. The views advanced that the Government can inexcusably ignore the opinion of the CJI expressed during the process of consultation as well as of the Chief Justice of the

ADVOCATES ASSN. v. U.0.1.[PANDIAN,J.] 845

High Court and appoint its selectees on its own evaluation of the merit of the candidates, in our considered opinion, cannot be a conceivable logical conclusion.

It cannot be gainsaid that the CH being the head of the Indian Judiciary and paterfamilias of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary and he in that capacity evaluates the merit of the candidate with regard to his/her professional attainments, legal ability etc. and offer his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a super-imposition test under the guise of over-guarding the judiciary. C

In this context, it will be relevant to quote the verse of Decimus Junius Juvenalis, a Roman satirist who while denouncing the vices of imperial Rome stated thus : D "Sed quis custodiet ipsos Custodes? (But who is to guard the guards themselves?)"

One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive E or other services. In a recent judgment in All India Judges' Association & Others v. Union of India & Others, [1993] 4 JT 618, rendered by a three-judges Bench presided over by M.N. Venkatachaliah, CJ and consist- ing of AM. Ahmadi and P.B. Sawant, JJ, the following observations are ·made: F The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. G When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute three pillars of the State, that is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, H

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

A those who exercise the state-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the B political executive. Similarly, the legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the legislature c and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of other services. The members of the other services, therefore, cannot be placed on par with the mem- bers of the Judiciary, either constitutionally or functional- D ly....................... It is high time that reasons pointed out above there · cannot be any link between the service. conditions of the judges and those of the members of the other services......................... As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary E and the political executive Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged." (emphasis supplied)

F With a view to contradicting and overthrowing the above argumen~ and the executive should not have any unfettered 'say' and 'control' over the selection and appointment of Judges to the highest echelon of the judiciary, various methods followed in different foreign countries have been projected and pressed into service. Firstly, they referred to the methods G adopted in the appointment of Judges in the United States of America by nomination or by election as the case may be, in that the Judges to the federal Supreme Court of the United States are nominated by the Presi- dent of USA and the Judges to some State judiciaries are elected. They also referred to the Constitution of Courts in the United Kingdom, namely, H Supreme Court of England and Wales consisting of the Court of Appeal,

ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.] 847

the High Court of Justice and the Crown and to the status accorded to the A Lord Chancellor as the President of the Supreme court as embodied in the Supreme Court Act of 1981. See Halsbury's Statutes Fourth Edition Volume 11 Page 756 to 865. ls not necessary to swell this judgment by referring to the detailed procedure of appointment of Judges made in some other countries such as Canada, France, West Germany, Japan and Australia etc. . B where also, of course, the executive is exclusively vested with the power of appointment of Judges.

True, the power of appointment of Judges in niany democratic • countries is vested in the executive. Though it is said that the Judges of the federal judiciary in USA are nominated and appointed by the President, C in fact, that process itself i5 a very difficult and lengthy one. To put in short, the nominee of the president of USA to the Federal Supreme Court has to appear before the Senate Judiciary Committee for 'confirmation hearing' which usually extends over for a few days. During the process of hearing, the nominee is subjected to an incisive and searching questioning regarding the constitutional philosophy of the <:andidate concerned his/her ability, potentiality etc. The views expressed by the candidate is made know to the entire people of America through media such as newspapers, televisions • etc. It is only thereafter, the Committee makes its recommendations for or against to the Senate which in turn approves or disapproves the candidate by a simple majority of the Senate. If the candidate is approved, his appointment is made for life tenure. Present methods of appointment of State level Judges in United States are : (1) Partisan election (16 States); (2) Non-partisan election (16 States); (3) Appointment by executive (Federal System, 9 States and Puerto Rico); (4) Selection by the Legisla- ture (4 States); (5) Merit system (13 States). F

In the process of election to the State judiciary- there is always an element which is unknown to our legal system.

Mississippi, in 1832 was the first state to adopt a completely elective G judiciary. New york, however, by action of its constitutional convention in 1864, led the switch from legislative and gubernatorial appointment to election. All states entering the Union from then until the entrance of Alaska in 1958 came in with an elected judiciary and even the colonial states of Georgia, Marryland, Virginia and Pennsylvania joined in the H

848 SUPREME COU~T REPORTS [1993) SUPP. 2 S.C.R.

A switch from appointment to election.

Dissatisfaction began to develop immediately after election of the judiciary came into vogue in the mid 1800's. In the 1860's, the Tammany Hall organisation in New York City seized control of the elected judiciary and aroused public indignation by ousting able judges and putting in incompetent ones. As a result, the question of a return to the appointment method was submitted to the people by referendum in 1873 but was defeated. Tammany control of the judiciary continued, and similar condi- tions in other states led to a revulsion agirinst the elective system soon after it was established. Virginia went back to legislative selection after fourteen years of judicial elections. Vermont elected minor court judges for twenty years but abandoned this method in 1870. Even Mississippi went back to appointmet in 1868 and retained it until 1910. Furthermore, states which retained the elective system became increasingly, concerned about the adverse effect of political selection on the quality of judicial personnel and developed the nonpartisan ballot as a means of "taking the judges out of politics."

After long experience with judicial selection by merit in Mississippi, the plan by name Missouri Plan was adopted in 1940. Under that plan, the nominating commissioners become important for they set the patter of the judicial appointments. according to that plan, when a vacancy occurs, the names of all applicants are submitted to the proper judicial commission, ge~erally by·Ietter from the applicant or some friend who wishes to present the application for consideration. The Commission encourages the filing of applications since there is no restriction on the number of applicants. The F Commissioner carefully screen the applications to determine their qualifications and eligibility and select and submit to the Governor, a panel of three names, all of whom are recommended as being competent and well qualified for judicial office. Thereafter, the Governor appoints one of the nominees to judicial office from the panel. This, under the Missouri G Plan, the judiciary in Missouri had moved from political dependence to judicial independence.

See Texas Law Review (Volume 44) 1966.

Thus, it is seen that even in some of the states in the USA, there was rethinking of the selection process of Judges and going back to the process

ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 849

of 'nomination' because it had been felt that the direct election system produces politically oriented opinions and invited apathy to judicial ac- tivity.

In United Kingdom, the Lord Chancellor who is politically desig- nated as head of the judicial hierarchy advises on all appointments to the judicial office from the rank of Justice of the Peace to the higher offices of the English judiciary. The appointments to the Court of Appeal and the House of Lords and to the offices of Lord Chief Justice, Master of the Rolls and President of the Family Division are .!!1~de of the advice of the Prime Minister after consultation with the Lord Chancellor. He (Lord Chancellor) presides over the House of Lord besides being Member of the C Cabinet and Head of the Judiciary. He combines in his position three fold functions of Executive, Legislature and Judiciary. In short in United Kingdom, the power to select and appoint Judges unquestionably vests in the Executive. However, opinions were expressed that there must be an advisory body to assist the Lord Chancellor in the- matter of selection of D personnel for appointments to higher judiciary. Consequent upon that in 1972, the Justice Sub committee on the Judiciary recommended that while the Lord Chancellor should retain control of the appointment Machinery, he should be helped in his task by a small Advisory Appoint- ments Committee. Vide Law Commission of India (One Hundred Twenty- E first Report page 38 para 6.16).

As we have pointed out in the preceding part of this judgment while dealing with the concept of independence of judiciary even in foreign countries, there is a demand for a change in the system of selection and appointment of Judges. In fact, similar argument was advanced before the F Constituent Assembly and suggestions for appointments of Judges were made on the models in existence in different parts of the globe. But Dr. B.R. Ambedkar repelled and rejected that line of argument and sugges- tions, stating thus : G "It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation of limitation, what is to say; merely on the advice of H

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

A the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to make subject to the concurrence of legislature is also not a very suitable provision.'

It is not necessary to expatiate on this topic any more and this aspect need detain us from proceeding further.

Nevertheless, we have, firstly to find out the ails from which our judicial system suffers, secondly to diagnose the root cause of those ail- ments under legalistic biopsies, thirdly to ascertain the nature of affliction on the system and finally to evolve a new method and strategy to treat and cure those ailments by administering and injecting a 'new invented medicine' (meaning thereby a newly developed method and strategy) manufactured in terms of the formula under Indian pharmacopoeia (mean- ing thereby according to national problems in a mixed culture etc.) but not according to American or British pharmacopoeia which are alien to our D Indian system though the system adopted in other countries may throw some light for the development of our system. The outcry of some of the critics is when the power of appointment of judges in all democratic countries, far and wide, rests only with the executive, there is no substance in insisting that the primacy should be given to the opinion of the CJI in selection and appointment of candidates for judgeship. This proposition that we must copy and adopt the foreign method is a dry legal logic, which has to be rejected even on the short group that the Constitution of India itself requires mandatory consultation with the CJI by the President before making the appointments to the superior judiciary. It has not been brought to our notice by any of the counsel for the respondents that in other countries the executive alone makes the appointments notwithstanding the existence of any existing similar constitutional provisions in their Constitu- tions.

When an argument was advanced in Gupta's case to the effect that where there is difference of opinion amongst the Constitutional functionaries required to be consulted, the opinion of the CJI should have primacy, since he is the head of the Indian Judiciary and paterfamilias of the judicial fraternity, Bhagwati, J rejected that contention posing a query, as to the principle on which primacy can be given to the opinion of one constitutional functionary, when clause (1) of Article 217 placed all the

ADVOCATES ASSN. v. U.0.1.[PANDIAN,J.] 851

three constitutional functionaries on the. same pedestal so far as the process of consultation is concerned. The learned Judge by way of an answer to the above query has placed the opinion of the CJI on par with the opinion of the other constitutional functionaries. The above answer, in our view, ignores or overlooks the very fact that the judicial service is not the service in the sense of employment, and is distinct from other services and that B "the members of the other services ................-::: cannot be placed on a par with the members of the judiciary, either constitutionally or functionally". (See All India Judges Association and Others case (supra). There are innumerable impelling factors which motivate, mobilise and impart momentum to the concept that the opinion of the CJI given in the process C of 'consultation' is entitled to have primacy. they are :

(1) The 'Constitution' with the CJI by the President is relatable to the judiciary and not to any other service.

(2) In the process of various Constitutional appointments, 'consult - D ation' is required only to the judicial office in contrast to the other high ranking constitutional offices. The prior 'consultation' en- visaged in the first proviso to Article 124(2) and Article 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior courts. E

(3) The 'consultation' by the President is a sine-qua-non or a condition precedent to the exercise of the constitutional power by the President to appoint Judges and this power is inextricably mixed up in the entire process of appointment of Judges as an F integrated process. The 'consultation' during the process in which an advice is sought by the President cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity. G (4) The context in which the expression "shall always be consulted" used in the first proviso of Article 124(2) and the expression "shall be appointed ......after consultation" deployed in Article 217(1) denote the mandatory character of 'consultation', which has to be and is of a binding character. H

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

A (5) Article 124 and 217 do not speak in especific terms requiring the President to consult the executive as such, but the executive comes into play in the process of appointment of Judges to the higher echelons of judicial service by the operation of Articles 74 1

and 163 of the constitution. In other words, in the case of appoint- B ment of Judges, the President is not obliged to consult the execu- tive as there is no specific provision for such consultation.

(6) The President is constitutionally obliged to consult the CTI alone in the case of appointment of a Judge to the Supreme Court as per the mandatory proviso to Article 124 (2) and in the case of c appointment of a Judge to the High Court, the President is obliged to consult the CTI and the Governor of the State and in addition the Chief Just:ce of the High Court concerned, in. case the appoint- ment relates to a Judge other than the Chief Justice of that High Court. Therefore, to place the opinion of the CTI on par with the other constitutional functionaries is not in consonance with the spirit of the Constitution, but against the very nature of the subject matter concerning the judiciary and in opposition to the context in which 'consultation' is required. After the observation of Bhag- wati, J in Gupta's case that the 'consultation' must be full and effective there is no conceivable reason to hold that such 'consult- ation' need not be given primacy consideration.

(7) The very emphasis of the word " always be consulted" signifies and indicates that the mandatory consultation should be unfailingly made without exception on every occasion and at every time by the President with the constitutional consultees.

In the Background of the above factual and legal position, the meaning of the word 'consultation' cannot be confined to its ordinary lexical definition. Its context in which the word is used as in our constitu- G tion.

The foregoing considerable deliberation leads to an inexorable con- clusion that the opinion of the Chief Justice of India in the process of constitutional consultation in the matter of selection and appointment of H Judges to the Supreme Court and the High Courts as well as transfer of

ADVOCATESASSN. v. U.0.I.[PANDIAN,J.] 853

Judges from one High Court to another High Court is entitled to have the A right of primacy. In sum, the above logical conclusion and our special sense dictate :

Like the Pope, enjoying supremacy in the ecclesiastical and temporal affairs, the CJI being the highest judicial authority, has B a right of primacy, if not supremacy to be accorded, to his opinion on the affairs concerning the 'Temple of Justice.' It is a right step in the right direction and that step alone will ensure optimum benefits to the society.

No doubt, it is true that under Article 217 the President has to consult three constitutional functionaries, namely (1) the CJI; (2) the Governor of the State; and (3) in case of an appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned. In the matter or appointment of Judges to both of the Supreme Court and the High Courts, it is the President who "by warrant under his hand and seal" has to make the appointment. In discharging the constitutional func- tions under Article 124 (2), 217 (1) and 222, the President acts on the aid and advice of the Council of Ministers with the Prime Minister at the head and exercises his functions in accordance with such advice as contemplated under Article 74(1). Similarly, the Governor in the discharge of his con- E stitutionai duties acts on the aid and advice of the Council of Ministers with the Chief Minister of that State at the head and exercise all his constitutional functions except in so far as he is by or under the Constitu- tional required to exercise his functions or any of them in his discretion as contemplated in Article 163(1) read with Articles 166(3) and 167. To say in other words, the President exercises his constitutional duty in making appointments of Judges to the Supreme Court and the High Courts on the aid and advice of the Council of Ministers with the Prime Minister at the head.

Krishna Iyer, J. speaking for himself and Bhagwati, J. and concurring with the majority view has pointed out in Shamsher Singh's case (supra) that "the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion, satisfaction or decision." H

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

A The Governor, being at the apex of the· executive is vested with all the executive powers of the State (vide Article 154(1) and he is also at the apex of the State Legislature (vide Article 169). In both the capacities, the Governor has several functions to perform which include powers and duties. Therefore, the Governor during the process of 'consultation' by the B President discharges his constitutional duty in giving his opinion to the President in the matter of appointment of Judges to the High Court of his State on the advice of Council of Ministers with Chief Minister at the head. Therefore, the executive of the Union while advising the President and the executive of the State while advising the Governor in the discharge of their C duty (as the case may be) in giving their opinion during the process of 'consultation' perform an important role.

Under the proviso, introduced by the Constitution (Forty-fourth Amendment) Act, 1978 to Article 74 (1), the President can require the D Council _of Ministers to reconsider such advice either generally or other- wise, but the President cannot dispense with the advice rendered after such reconsideration and is bound by the advice. Therefore, nothing is left to the discretion of the President under this Article in contrast to Article 163(1) which expressly excepts certain matters in which the Governor is, by or under the Constitution required to act in his discretion. In case, the E President has got some objection to the proposed course of action on the advice of his Ministers, the only course open to him is to require the Council of Ministers to reconsider such advice either generally or other- wise. But if the same opinion is reiterated by the Ministers, the President has no other option except to accept the advice of the Ministers. Krishna F Iyer, J adverting to that position in Shamsher Singh v. State of Punjab (supra) said :

"Does this reduce the President, under the Indian Constitution, to a figurehead? Far from it. Like the Kingm m England, he will still. have the right 'to be consulted, to encourage and to warn'. Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry's first thoughts. The President can state all his objections to any proposed course of action and ask his Ministers in Council, if necessary, to reconsider the matter. It is only in the last resort that he much accept their final ad-

ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.] 855

vice................... The President of India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, 'the right to be consulted, to warn and encourage'. Indeed, Art. 78 wisely used, keeps the President in close touch with the Prime Ministers on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors, i.e. the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticised but actually vested with a pervasive and persuasive role."

Thus, it is seen that the President has no discretionary powers as in J) the case of the Governor even though the discretionary power of the Governor is only a small strip, with which we are not very much concerned in this case. The president is required to perform his administrative duty under the Constitution, the performance of which requires his formal approval or seal and in respect of which nothing is left to his discretion E even if the character of such constitutional functions is often tinged with a political flavour. The result of what we have arrived at is that the power of the President to appoint a Judge does not prevail over the authority of the executive but is confined purely to the executive's discretion. F Even though all the constitutional functionaries have their own con- stitutional duties in making appointment of Judges to the superior judiciary, the role of one of the principal constitutional functionaries, (namely, the judiciary) is incontrovertibly immeasurable and incalculabe. The task assigned to the judiciary is no way less than those of other functionaries - legislative and executive. On the other hand, the respon- G sibility of the judiciary is of a higher degree. As frequently said, judiciary is the watch dog of democracy, checking the excessive authority of other ·constitutional functionaries beyond the ken of the Constitution. It cannot be disputed that the strength and effectiveness of the judicial system and its independence heavily depends upon the calibre of men and women who H

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

A preside over the judiciary and it is most essential to have a healthy independent judiciary for having a healthy democracy because if the judi- cial system is crippled, democracy will also be crippled.

Iii practice, whenever the Council of Ministers both at the Central and State level, as the case may be, plays a major role in its self-acclaimed absolute supremacy in selecting and appointing the Judges, paying no attention to the opinion of the CJI, they may desire to appoint only those who share their policy performances or show affiliation to their political philosophy or exhbibit affinity to their iaeologies. This motivated selection of men and woman to the judiciary certainty undermines public confidence in the rule of law and resultantly the co11cept of separation of judiciary from the executive as adumbreated under Article 50 and the cherished concept of independence of judiciary untouched by the executive will only be forbidden fruits or a myth rather than a reality. In that situation, the consultation with the CJI will be an informal one for the purpose of satisfying the constitutional requirements. As it has been pointed out in Gupta's case that the judiciary m?y be the weakest among the constitutional functionaries, for the simple reason that it is not possessed of the long sword (that is the power of enforceability of its decisions) or the long purse (that is the financial resources), but if the opinion of the executive is to prevail over, the opinion of CJI in matters, concerning judiciary on account of that reason, then the independent judiciary which is a power of strength for all - particularly for the poor, the downtrodden and the average person cofronting the wrath of the Government will be a misnomer.

It will be quite appropriate in this connection to recapitulate the view expressed by Sir Winston Churchill emphasising the independence of judiciary in a parliamentary debate before the House of Commons in the year 1954 which reads thus:

"The Judge has not only to do justice between man and man. He also - and this is one of the most importantfunctions considered incomprehensible in some large parts of the world - has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law, and to adjudicate upon the legality of the exercise by the executive of its powers."

H (emphasis supplied)

ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 857

The above view as to the need of restraint upon executive appoint- A ment of judges has been emphasised and re-emphasised by Sir Garfield Barwick, Chief Justice of Australia in his suggestions as to the manner of selection of Judges, which reads thus :

"In my view, the time has arrived in the development of this B community and of its institution when the privilege of the Executive Government in this area should at least be curtailed. One can understand the reluctance of a government. to forgo the element of patronage which may inhere in the appointment of a Judge. Yet I think that long term considerations in the administration of justice all for some binding restraint of the exercise of this privilege ............ C

It is not for me to express here my own preferences. It should suffice that I say with a degree of emphasis that the time is here when some restraint should be placed upon and accepted by the Executive Government in its choice of judicial appointees."

No one can den~ that the State in the present day has become the major litigant and the superior Courts particularly the Supreme Court, have become centres for turbulent controversies some of which with a flavour of political repercussions and the Courts have to face tempest and storm because their vitality is a national itnperative. In such circumstances, there- fore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitrators. The answer would be in the negative. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace. By going through various Law Commission Reports (particularly Fourteenth, Eightieth and One Hundred and Twenty-first), Reports of the Seminars and articles of eminent jurists etc., we understand that radical change in the method of appointment of Judges to the superior judiciary by curbing the £icecutive's power has been accentuated but the desired result has to bel:n achieved even though by now nearly 46 years since the attainment of independence and more than 42 years since the advent of the formation of our constitutional system have elapsed. However, it is a proud privilege that the celebrated birth of our judicial system, its independence; mode of H

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A dispensation of justice by Judges of e~inence holding nationalistic view stronger than other Judges in any other nations, and the resultant triumph of the Incian judiciary are highly commendable. But it does not mean that the present system should continue for ever, and by allowing the executive to enjoy the absolute primacy in the matter of appointment of Judges as its 'royal privilege'.

The polemics of the learned Attorney General and Mr. Parasaran for sustaining the view expressed in Gupta's case, though so distinguished for the strength of their ratiocination, is found to be not acceptable and falls through for all the reason aforementioned because of the inherent weakness of the doctrine which they have attempted to defend.

The aforementioned discussion leads to an inescapable conclusion that all the factors mentioned above coalesce to support the view that the executive will not be justified in enjoying the supremacy over the opinion of the CJI in the matter of selection of Judges to the superior judiciary.

The procedure in vogue as regards the formal proposal for filling up the vacancy in the Supreme Court in initiated by the CJI by recommending the name of the person found suitable by him to Minister of Law .and E Justice who if accepts the recommendations, forward the proposal to the Prime Minister of India who thereupon, if he approves that proposal, advises the President to issue a formal warrant of appointment. Similarly, in the case of appointment of a Judge to the High Court, the formal proposal emanates from the Chief Justice of the High Court and that proposed is considered by the Chief Minister of the State duly processed through the Governor and forwarded to the CJI through the Ministry of Law and Justice. The Minister of Law and Justice, if he agrees with the recommendation of the CJI, forwards the proposal to the Prime Minister who then, if he approves that proposal, advises the President to issue a formal warrant. So far as the proposal initiated by the CJI for appointment of a Judge of the Supreme Court is concerned, if at all there is any disapproval that will only be from the side of the Central Government. In case of an appointment of a Judge to the High Court, since the proposal has to emanate from the Chief Justice of the High Court, the question of disapproval, if any, may arise either from the State Government, the CJI H or the Central Government. In a case where the Chief Justice of the High

ADVOCATES ASSN. v. U.O.I. [PANDIAN,J.) 859

Court proposes a name but the State Government turns it down, the proposal may not reach the second stage, i.e. the stage of the scrutiny by the CJI and the Central Government. In case, the State government agrees with the proposal of the Chief Justice of the High Court but the en disagrees on any ground then what would be the outcome of that proposal? In such a situation, if the consultation of the en is considered to be an informal one then as per the dictum laid down in Gupta's case, the Central Government if it agrees with the Chief Justice of the High Court and the State Government concerned can advise the President regardless of the opinion of the CJI. Even in extreme cases where the Chief Justice of the High Court initiates the proposal but it is turned down by the State C Government and the CJI, even then the Central Government on the dictum laid down in Gupta's case can approve that candidate and recommend to the President for appointment. It is true that while recommending a candidate for the higher State judiciary, the Chief Justice of the High Court has the advantage of proximity in evaluating the calibre and legal ability of the candidate. However, the CJI before whom the opinion of the Chief D Justice of the High Court as well of the State Government is placed with all the relevant materials concerning the proposal is in a better position either to accept the recommendation or reject it for strong and cogent reasons to be recorded. As pointed out in the earlier part of this judgment, the merit of a candidate with regard to his/her professional attainments, E legal soundness, ability, skill etc. can be evaluated only by the Chief Justice of the High Court in the matter of appointment of Judges of the High Court and by the CJI in the rn:1tter of appointment of a Judge to the Supreme Court. However, since the judiciary does not have sufficient machinery of its own to check the antecedents and background of a F candidate, the Chief Justice of the High Court and the CJI may not be in a position to express any opinion about the conduct, character and antece- dents of the candidate. But the Government with its powerful machinery can check the antecedents and background of the candidate and give its opinion on that aspect. Therefore, when a recommendation of the Chief Justice of a High Court comes to the CJI with all particulars including the G background of such candidate, he will be in a better position on examina- tion of all the materials placed before him, to evaluate the fitness of the candidate. Therefore, in all circumstances, the opinion af the CJI is entitled to have the right of primacy in the matter of selection of judges to the H

860 SUPREME COURT REPORTS [1993J ~Uh .'.S.C.R

A Supreme Court as well as the High Courts. Whil: proviso to Article 124(2) contemplates the consultation with i.he CJI by the President, Article 217(1) contemplates the consultation of the Chief Justice of the High Court concerned in addition to the opinion of the CJI and the Governor of the State. But these two Articles do not require the CJI and the Chief Justice of a High Court in the formation of their opinion to have a consultative process with the entire body of Judges of the Supreme Court and High Courts. To say differently, the opinion sought by way of consultation is not th~ opinion of the entire body of the Court concerned, as embodied in Article 235 of the Constitution which vests 'Control over subordinate courts' 'in the High Court'. Notwithstand- ing this legal position, in order to have a pragmatic approach to matters relating to appointments of Judges to the Supreme Court, it would be a healthy practice as a m<:>tter of prudence that the 01 given his opinion on - a consultative process by taking into account the views of two senior-most D Judges of the Supreme Court and the views of any other Judge or Judges of the High Court whose opinion is likely to be significant in adjudging the suitability of the candidate, as pointed out by my learned brother, J.S. Verma, J in his separate judgment. Similarly in matters relating to appoint- ment of Judges to the High Courts, it would be better if the Chief Justice E of the High Court concerned forms his opinion on a consultative process by ascertaining the views of at least two of the senior-most Judges ofthe High Court and such other Judges, whose opinion is likely to be significant in the formation of his opinion. The CJI whilst forming his opinion on the recommendation made by the Chief Justice of the High Court concerned for appointment of a Judge to the High Court, may take into account the views of his colleagues in the Supreme Court who are likely to be conver- sant with the affairs of the concerned High Court, as pointed out by my learned brother, J.S. Verma, J. This consultative process is neither opposed to the constitutional provisions nor stands in the way of the President consulting, in his discretion, such of the Judges of the Supreme Court, and of the High Courts in the states while considering the recommendation made by the 01 for appointment of a Judge to the Supreme Court. On the other hand, the opinion so expressed by the 01 through such a consultative process, would be of much assistance to the President in forrning his independent opinion. H

ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 861

The next key issue involving grave an : far reaching doubts is whether A the President is bound by the opinion of the CJI under all circumstances in view of the primacy to be attached to the opinion of the CJI and whether the president has or has not the right of vetoing the opinion of the CJI for weightly reasons to be recorded and communicated to the CJI. Since this issue has been well considered and answered by my learned brother, J.S. B Verma, J with whose opinion, I concur, I feel that it is not necessary to launch any more discussion on this point except saying that when the 01 disapproves the proposal after the application of his mind on due con- sideration of all the materials placed before him with which the other consultees of the Supreme Court also agree, that opinion of the OJ C deserves acceptance at the hands of the President of India. If for any other potent reasons, the President forwards all materials available with him which influenced his mind to take a contrary view requesting the en to reconsider his opinion and the OJ expresses the same opinion of disap- proval, after consulting his colleagues, then the opinion of the en should prevail and that candidate is not appointed. In ally exceptional case, for D weighty and cogent reasons indicating that the recommendee is not suitable for appointment, that appointment recommended by the 01 may not be made. However, if the stated reasons are not acceptable to the 01 and the other Judges who )lave been consulted in the matter, and the recommen- dation by the 01 is reiterated, the appointment shall be made. E

Has the executive got the right of proposing the candidates for the Judgeship?

In this connection, we would like to cogitate an important issue as to whether the executive also has got a right of proposing the candidature for the judgeship to the Supreme Court and High Courts or whether the executive is totally debarred from exercising such right.

We have already observed that by convention and practice, the initiation of proposal for judgeship is to be made only by the 01 whose opinion in this matter, is entitled to primacy or the Chief Justice of the High Court concerned non else and that the procedure in vogue alone is a healthy practice. Therefore, at the forefront we may emphatically say that the Central or State Government shall not have any .right of directly initiating the name of any candidate for judgeship bypassing the 01 or H

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

A Chief Justice of the State and that if such a right of initiation by the Government is recognised and accepted regarding the judicial appoint - ments then it will not be violative of the well accepted long standing practice but also destructive of the independence of the judiciary.

B It will be pertinent, in this connection, to take note of the fact that recruitment to the judiciary at the level below the District Judges is either through a State Public Service Commission which is an independent body or through an entrance test organised by the High Court. The recruitment at the level of District Judges is made by the Governor in exercise of his powers under Article 233 of the Constitution which power of appointment is conditioned by the obligation to consult the High Court. In practice, the High Court selects the candidates by an interview and sends a panel to the Government from which the required strength of the candidates is selected and appointed by the Governor but after the appointment, the entire "control over the district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of State and holding any post inferior to the post of district judge" is vested in the High Court.

On cogitation of this problem, we are of the view that there will be not unconstitutionality or illegality in making proposals and that such proposals will not be violative of the existing practice or opposed to the public policy. Indeed the Central Government which is accountable to the people should have the right of suggesting the names of the suitable candidates with sterling character for consideration to the CJI for F Judgeship of the Supreme Court and to the Chief Justice of a State to that High Court. Similarly, the State Government which is also equally account- able to the people should have the right to suggest the names of candidates for consideration to the Chief Justice of its State. The above view is based on the following reasons :

G (1) In the context of the plurastic society of India where there are several distinct and differing interests of the people with multi- plicity of religion, race, caste and community and with the plurality of culture brought together and harmonised by the Constitution makers by assuring each section, class and society 'equality of status and of opportunity, it is inevitable that all people should be

ADVOCATES ASSN. v. U.O.I. (PANDIAN, J.] 863

given equal opportunity in all walks of life and brought into the mainstream so that there may be participation of all sections of people in every sphere including the judiciary.

(2) The Government which is accountable to the people has its constitutional obligation to treat all alike and afford them equal opportunity in all spheres including the superior judiciary.

(3) It is essential and vital for the establishment of real par- ticipatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society not by any selective or insular group.

(4) In the normal or accepted way of making such suggestion regarding the names of the candidates by the Chief Justice even after consulting his senior colleagues, he may not have sufficient opportunity to evaluate the merit and suitability of the most deserv- ing and worthy legal practitioners other than those who have appeared before him or whose names alone have brought to his notice by his <:onsultees. It is especially so in cases where some of the suitable and fit persons are specialising in some other branches of law and who may not have any chance of appearing before the Chief Justice or his consultees. But the Governmt<nt may be in a position to come to know about those candidates from other source or through its powerful machinery. F

(5) There may be most meritorious and suitable candidates prac- ticing in forums other than the the High Courts. Theref9re, it may not be possible for the Chief Justice of a State to know the legal ability and suitability of those candidates either personally or even G form his consultees. In such cases, the Government may be in a position to know the candidates and bring the names of such persons to the notice of the Chief Justice. In the present day, when Chief Justices are being transferred from one state to another, they may not be in a position atleast for some period, to know per- H

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

A sonally about the candidates unless he is well informed from other sources.

(6) It cannot be gainsaid that there is a general grievance that suitable candidates for judgeship who are at the grassroot level of society are inexcusably neglected from being considered for judi- B cial office for one reason or another. Therefore, the Government will be justified in proposing the names of those candidates to the Chief Justice concerned from the neglected section or class along with others· whom the Government thinks fit and suitable to be considered for appointment of Judges. c It may be worthy to note that even in well advanced countries like U.S.A. or United Kingdom, in practice, regional, social and racial repre- sentations are kept in view in making appointments of judges to superior judiciary, without of course sacrificing merit. D I would like to emphatically declare that the above view of mine should not be construed as a plea for reservation or quota system, of any kind, but it is expressed only with the sole object of attracting the best in judicial talent from all sections of society on equal footing and bringing them within the zone of consideration by the concerned Chief Justice.

I am emboldened to express this view because with the years or experience for nearly two decades at the Bar and two decades on the Bench and with knowledge and experience I have gained so far about the manner and method of selection of Judges I had opportunity to notice that on few occasions, the candidates have been initiated for judgeship either on regional or caste or communal basis or on extraneous considerations. There have been complaints, which cannot be easily brushed aside that some of the recommendations have been tainted with nepotism and favour- tism. No doubt, there is an abundance of sermons, preachings and teach- G ings that the selection and initiation of candidates for judgeship should be free extraneous consideration, nepotism and favourtism - yet can it be said that in reality, such high flown sermons are implicity followed by all including some of the preachers? Can it be said that anyone is exempted from following such sermons and preachings or anyone enjoys any im- munity therefrom. Regretably, it is a fact of life that some have followed such homilies more in the breach than in their observance. Even today,

ADVOCATESASSN. v. U.O.I.[PAND IAN,J.) 865 1

there are complaints that generations of men from the same family or caste, community or religion, are being sponsored and initiated and appointed as judges, thereby creating a new "theory of judicial relationship."

In this connection, it is worthy to note the view of Sardar Vallabhbhai Patel in his letter of the 8th December 1947 addressed to the Governor General of India regarding a memorandum issued on the procedure for filling vacancies in His Courts. It reads thus :

"Purity of motives is not the monopoly of a Chief Justice nor nepotism and jobbery the vices of politicians, only."

As rightly pointed out by Dr. B.R. Ambedkar, "the Chief Justice is a c man with all the failings, all the sentiments and all the prejudices which we as common people have ................."

The Eightieth Report of the Law Commission on this aspect of matter has stated thus : D

"Criticism has occasionally been levelled that the selection has not been proper and has been induced by ulterior considerations."

Having stated so, it has lamented that a person appointed not on E merit but because of favourtism or other ulterior considerations can hardly command real and spontaneous respect from the bar.

In Gupta's case, Bhagwati, j has stated, ''We are all human beings with our own likes and dislikes, our own predelictions and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a F question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or ir- relevant considerations...................... it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or G important may be the office which he is occupying."

I venture to express that the right of entry into superior judicial office is not the exclusive prerogative of any particular coterie or privileged class or group of people. To say differently, it is neither inheritable nor a matter patronage. H

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

A The above view of mine regarding the inadequate representation of various sections of people is neither illusory nor imaginary but is the actual and real existing fact and it is fully fortified by the following statements made in the Parliament by the Minister of Law, Justice and Company Affairs pertaining to the OBCs, STS, SCs and women Judges in the B Supreme Court and High Courts.

s.TATEMENTINREPLYTO PARTS (a) & (b) OF LOK SABHA UNSTARRED QUESTION NO. 1410 FOR ANSWER ON 4TH AUGUST, 1993.

c AS ON 20.5.1993 Number of Judges No. of S.No. High Court Belonging to Women SC ST Judges

1Copy pinpoint1. Allahabad 3 - 1

2Copy pinpoint2. Andhra Pradesh - 1 1

3Copy pinpoint3. Bombay 4 - 1

4Copy pinpoint4. Calcutta - - 2

5Copy pinpoint5. Delhi - - 2

6Copy pinpoint6. Gauhati - 3 1

7Copy pinpoint7. Gujarat 1 - -

8Copy pinpoint8. Himachal Pradesh - - 1

9Copy pinpoint9. Jammu & Kashmir - - -

10Copy pinpoint10. Karnataka 2 2 -

11Copy pinpoint11. Kerala 1 - 1

12Copy pinpoint12. Madhya Pradesh - - -

13Copy pinpoint13. Madras 2 - 1

14Copy pinpoint14. Orissa - - 1

15Copy pinpoint15. Patna (Do not maintain official record) 1

16Copy pinpoint16. Punjab & Haryana - - 1

17Copy pinpoint17. Rajasthan - 1 1

18Copy pinpoint18. Sikkim - - - TOTAL 13 7 15 H

ADVOCATES ASSN. v. U.O.I. [PANDIANs J.] 867

Statement in reply to parts (a), (b) (c) & (d) of Lok Sabha Unstarred A Question No. 4742 for 31.3.93 regarding sanctioned strength of Judges in High Courts and Supreme court.

As on 1.1.1993 B s. High Court Sane- No. of No. of Source of ap- Judes belonging No. tioned Judges posts nointment to strength in posi- vacant Bar Service SC Sf OBC (Per-" lion manent/ Addi- tional) c 1 2 3 4 5 6 7 8 9 10

1. Allahabad 70 66 4 44 22 3 - 2

2. Andhra Pradesh 26 24 2 15 9 - 1 3

3. Bombay 54 47 7 32 15 4 - 4

4. Calcutta 46 37 9 23 14 - - - D

5. Delhi 30 25 5 17 8 - - -

6. Gauhati 16 11 5 7 4 - 3 -

7. Gujarat 30 27 3 17 10 1 - -

8. Himachal Pradesh 8 5 3 4 1 - - -

9. Jammu & Kashmir 10 9 1 5 4 - - - E

10. Kamataka 30 21 9 12 9 1 2 14

11. Kerala 24 23 1 15 8 1 - 8

12. Madhya Pradesh 30 26 4 17 9 - - -

13. Madras 28 25 3 18 7 2 - 11

14. Orissa 14 13 1 9 4 - -

15. Patna 35 32 3 22 10 - - -

16. Punjab & Haryana 33 29 4 18 11 - - -

17. Rajasthan 25 22 3 14 8 ·- 1 -

18. Sikkim 3 1 2 - 1 - - - G TOTAL 512 443 69 289 . 154 12 7 42,

Supreme Court 26 23 3 - - (1J N.A N.A.

On the basis of the above statements, as on 1.1.1993, out of 18 High Courts in the country, 12 High Courts are without a single Judge belonging H

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

A to Scheduled Caste and 14 High Courts are without a single judge from Schedule Tribes. The backward classes are also not better placed and only 6 High Courts are shown to have Judges belonging to OBCs and 12 High. [ Courts are without a single Judge belonging to the OBCs.

As per the second statement, as on 20.5.1993, out of the total strength B Judges in the whole of India in the 18 High Courts, there are 13 Judges belonging to Scheduled Castes, 7 Judges belonging to Scheduled Tribes and only 15 women Judges. Eleven High Courts are unrepresented by any single Judge of Scheduled Castes, 13 High Courts are unrepresented by Scheduled Tribes and 5 High Courts are unrepresented by women C Judges.

Though the strength of the Judges belonging to OBCs as shown in the statement (as on 1-1-93) may or may not reflect the correct position at the present moment, we can safely assume the percentage of such Judges D to be not exceeding 10% of the total sanctioned strength. Likewise, the percentage of the Judges belonging to SCs and STs put together does not exceed 4% as per the late3t statement dated 20.5.93. So far as women Judges are concerned, their strength as on 20.5.93 does not exceed 3%.

However, unpalatable the above scenario may be to some, it is E nevertheless a ground reality. Our democratic polity is not only for any self perpetuating oligarchy but is for all people of our country.

If the vulnerable section of the people are completely neglected, we cannot claim to have achieved real participator democracy. Therefore, F there is every justification for the Government to forward lists of can- didates belonging to diverse sections of the people to the Chief Justice concerned, who has to ultimately scrutinise the list and take his decision on the merit of the candidates without giving room for any criticism that the selection was whimsical, fanciful or arbitrary or tainted with any G prejudice or bias. It is open to the Chief Justice of the High Court to get more particulars from the Government before taking any decision in this regard. Once the decision is taken by the Chief Justice of a State and the list is forwarded to the 01 then the opinion of the CJI based on the materials placed before him, should have the primacy.

H I feel that it is not necessary to dwell any more on this aspect except

ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.) 869

to say that to speak alone with my conscience will be judgment enough for A me.

Fixation of Judge Strength

Article 124 deals with the establishment and constitution of Supreme Court. Sub-clause (1) of that Article reads : B

"There shall be a Supreme Court of India consisting of a Chief Justice of India an, until Parliament by law prescribes a larger number, of not more than seven other Judges." c The Judge strength of the Supreme Court originally fixed in the Constitution as no more than seven Judges besides the CJI has been raised to 'thirteen' by the Supreme Court (Number of Judge) Amendment Act, 1960 and again increased to "seventeen" by the Supreme Court (Number of Judges) Amendment Act, 1977 and subsequently it was once again D increased to "twenty-five" by Act 22 of 1986. Consequent upon the peri- odical revision, at present, the number of puisne Judges stands at twenty five.

Article 216 which deals with 'Constitution of High Courts' reads : E "Every High Court shall consist ofa Chief Justice and such other .fudges as the President may from time to time deem it necessary to appoint."

Earlier to 1.11.1956 there was a proviso to this Article which read thus : "provided that the Judges so appointed shall at no time exceed in F number such maximum number as the President may from time to time, by order fix in relation to that Court". This proviso was omitted by the Constitution (Seventh Amendment) Act of 1956. The legislative power to constitute a High Court belongs to Parliament and it falls under Entry 76 List I of Seventh Schedule. The fixation of Judge strength in each of the G High Court is no doubt an executive function entrusted by Article 216 of the Constitution as a mandatory obligation to the Preside~t, that is the Government of India. Hitherto, the existing procedure is that the Govern- ment of India has to decide in exercise of its judgment as to what shall be the strength of Judges in each High Court upon consideration of various' H

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

[ A factors and as to how many permanent Judges or how many additional Judges are necessary to be appointed in a particular High Court. But there are no judicially manageable standards for the purpose of controlling or guiding the discretion of the Union of India in that respect. Therefore, the questions are (1) whether there are any standards or norms on the basis of which the Government of India can fix the Judge strength; (2) whether the opinion of the CJI, requesting the President to review the Judge strength in .a High Court deserves greater weight and (3) whether this issue of fixation of Judge strength is justiciable. There cannot be any mathemati- cal formula to fix the Judge strength either on the pendency of cases or on the average rate of disposals per Judge per year. However, there must be a periodical review of the Judge strength of the Supreme Court and every High Court with reference to the felt-needs for disposal of cases having regard to the backlog and expected future volume of cases.

Successive Law Commissions of India have expressed their grave concern more often than not about the Judge strength of the High Courts and made recommendations for increase of such Judge strength, but the implementation of the recommendations of the Law Commissions is tardy and more often ignored.

E It is relevant to not that the Law Commission chaired by Mr. Justice D.A. Desai in its 120th Report has examined the problem concerning "the scandalous delays in judicial administration" and stated in its first interim report dated 31.7.87 that though the previous Law Comini.ssions had ex- amined this problem, they "have not given the necessary impetus for a F comprehensive restructuring of judici;tl administration in India" and gave its primary answer to this problem, stating that it "is at once inescapably both political and technical" - 'political' in the sense that "it includes the overall lack of attention to this problem on the part of political parties, free press, social activists and the Bar", and " none of these groups shown any effective will to campaign for adequate man power planning for the Indian G Judiciary", and 'technical' in the sense that "the developing science of man power planning has not attracted the attention of policy opinion makers in the field of administration of justice in India." After answering some 'illustrative question', posed for its considerations, the Commission con- cluded that the "report will invoke sufficient parliamentary, public and H specialist discussion in order to assist a viable and comprehensive man

ADVOCATESASSN. v. U.0.1.(PANDIAN,J.] 871

power planning for the Indian Judiciary." A

Our Court system has a pyramidal structure with trial courts at the base and the Supreme Court at the apex. Though normally the appellate and revisional jurisdiction of the High Courts and finally the appeals to the Supreme Court on grant of special leave or on certificate are on a hierar- B chical basis, Parliament has by Section 46 of the Constitution (Forty-second Amendment) Act, 1976 has inserted Articles 323-A and 323~B in.Part XIV A with effect from 3.1.1977, thereby excluding the jurisdiction of all courts, except that of the Supreme Court under Article 136 with respect to the disputes or complaints referred to in clause (1) of Article 323-A and with respect to all or any of the matters falling within jurisdiction of the C Tribunals for other matters, enumerated under Article 323-B. Appeals respecting all other matters arising out of the judgments/orders of the ·Special or Designated Courts have to be filed directly before the Supreme Court. D In addition, it may be noted that .law are multiplying faster than over before. Every year legislative bodies at all levels pass hundreds of new laws, each of which leads to the issuance cif new rules and sometimes to new regulations. Consequent upon the increase of new legislations which per- haps are inevitable in a complex society, there arise corresponding massive intricate and volatile issues which the executive finds too hot to handle. In recent decades, people at large, politicians and the executive - whenever in difficult situation - turn more and more to the judiciary to solve their problems. In this sense, courts are now looked upon as the 'lightning arrester' of many complicated and serious problems including the issues with a touch or politics. Resultantly, judicial responsibility has expanded corresponding to the expansion of the scope of the governmental activities in general and increase of new kind of litigations involving complex issues, some kinds of which seem to be political rather than legal in nature. Consequently, there is heavy work load both in the Supreme Court and High Courts and the volume of cases is increasing alarmingly. G