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

In spite of the fact that the flow of litigations is limited to the extent possible by the 'winnowing process' or 'scanning or screening process' even at the admission stage and by the policy of 'dejudicialization' -i.e. keeping issues out of the courts - whereby some disputes are settled through J.{

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

A arbitration and mediation such as accident claim cases, and divorce matters etc. through Lok Adalats in which the Legal Aid Committee takes active participation, the pendency of cases before courts· is mounting and there is a docket explosion.

B Therefore, the question would be how to meet this challenge and who is the proper authority to advise the President (the Union Government) to review the strength of the Courts by revising the Judge strength, so that this grave situation may be tackled eff~ctively. We have painfully ex- perienced many a time that the proposals sent by the CJI for increasing the Judge strength are more often than not turned down by the executive C on one ground or other stating that the expenditure on administration of justice is non-plan expenditure or that there is financial restraint or that there is no sufficient infrastructure available or a request to wait for the next phase programme. Invariably, a Section Officer or Superintendent or an Additional Secretary at his desk or the Secretary concerned in the D Secretariat with total ignorance of the aspects of judicial administration decide the requirement of the Judges strength. 'Financial implication' which is usually a reason for turning down the proposal of the CJI and the Chief Justice of the High Courts as put forward by the learned Attorney General in his written submission cab never serve as a justifiable cause. E Similarly, the "Law of Diminishing Returns: can have no application in the matter of disposal of case. It is deplorable that sometime courts are established b\lt without presiding officers. The High Courts are plagued by intractable backlog and all predictions forecast the increase of work-load. In our considered opinion, unless there is an increase of Judge strength, which alone will deliver long range assistance, the superior courts cannot fulfill their national duties.

The litigation explosion stares us in the face and unless it is dealt with by adopting radical measures, the situation is likely to go out of hand. Even after taking note of the resounding failure of the past attempts at solving the unmanageable and intractable problems concerned with the judicial administration of the High Courts and Supreme Court, one cannot be expected to be a silent spectator or an inveterate optimist looking to the executive in the fond hop of getting invigorative solutions to make the justice delivery system more effective and resilient meet the contemporary needs of society which hope, as experience shows has never been success-

ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 873

fuL The torrential inflow of work in the Supreme Court and High Courts A is disproportionate to the output as a result of which there is an alarming volume of arrears. The diagnosis made and the remedial measures for improving the situations; the recommendations made by various Commis- sions for the periodical upward revisions of Judge strength of the superior courts on the basis of the empirical analysis and the manifold means and guides offered by various reports for expeditious disposal of cases and for reduction of the mounting arrears are still being watched with bated breath. One of the important causes which constitutes the delay in disposal of cases and the enhancement of arrears is due to the total indolence to the periodical upward revision of Judge strength. Having a realistic approach to the raising crescendo of work~load, this Court has on many prior occasions expressed its serious concern and called for remedial measures.

This Court in Kanubhai Brahmbhatt v. State of Gujarat, (1987] 2 SCR 314, has expressed it remorse over the long pendency of cases as follows :

"As it is, more than then years old Civil Appeals and Criminal D Appeals are sobbing for atkntion. It will occasion great misery and immense hardship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized And this is no imaginary phobia." E Subsequently in P.N. Kumar v. Municipal Corporation of Delhi, (1987] 4 SCC 609 at 610, this Court has observed :

"This Court has no time today even to dispose of cases which have to be decided by it alone and by on other authority. Large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may take more than 15 years to is pose of all the pending cases."

No doubt, Judges of Supreme Court and High Courts are over- worked. The non-filling of vacancies for months, sometime even years together, impose a heavy unbearable and intolerable work- load on those who are in office. In fact, Bhagwati, CJ was provoked to say in his Law Day Speech on 26th November 1986 that failure on the part of Govern- ment of fill in the vacancies has operated as an act of cruelty to the existing Judges to carry on under this unbearable burden. H

874 SUPREME COURT REPORTS [1993] Slif'P. 2 S.C.R.

In Subhash Shanna's case (supra) this Court realising this aspect of the matt,:r has expressed its opinion in the following words : I

"For its sound functioning, it is, therefore, necessary that there must be in efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength."

A litigant is not interested in making an analysis of the causes of delay, but he thinks in his own way that courts have caused the delay resulting in criticism galore, occasionally pungent, from different sections of t!1e people not only against the present day justice system, but also against the personnel manning the same. The restructuring of the Court system is an encouraging part of the reform of the justice delivery system. Any structure to be internally sound and externally long lasting must be constructed from the foundation. Therefore, this problem of tacking ar- D rears of the cases as well as speedy disposal of cases, which is a require- ment of Article 21 is a concern of the CJI as well as the Chief Justices of the High Courts. Therefore, in making the periodical review of the Judge strength of the superior courts, particularly the High Courts, the President must attach greater weight to the opinion of the CJI and the E Chief Justice of the High Courts and that exercise must be performed with due dispatch.

Any proposal made by a Chief Justice of the High Court for increas- ing the Judge strength of his concerned Court must be routed through the F CJI, who on such recommendation has to express his opinion either by giving his consent or modifying the recommendation or otherwise for sufficient and sound reasons and forward the same to the President. Once the CJI has concurred with the proposal, then the Government should accept that proposal without putting any spoke in the wheel or disapprov- ing it. As we have figuratively stated even at the prefatory not of the G judgment, the primary right of proposal of any celebrated judicial struc- tural reforms as well as reforms by the Constitution and composition of the Court is to vest only with the judiciary and judiciary alone because those reforms are concerned only with the judiciary. In this context, we wish to recapitulate the conclusion Nos. 5 and 30 arrived at by the 14th H Report of the Law Commission Vide para 82 at page 105 :

ADVOCATES ASSN. v. U.O.I. [PANDIAN, J.] 875

"(5) Any proposals made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, should be accepted without demur or delay.

(30) The strength so fixed should be reviewed at intervals of two to three years."

In the background of the above factual position, let us examine the question whether the issue relating to the fixation of Judge strength is a justiciable one or not. In Gupta's case Bhagwati, J dealt with this question and ruled:

"What should be the number of Judges necessary to be appointed in a particular High Court must essentially remain a matter within the discretion of the Government of India and if the Government D of India does not appoint sufficient number of judges, the appeal must be to the legislature and not to the Court. All that the Court can do is to express the hope that the Government of India will periodically review the strength of judges in each High Court and appoint as many judges as are found necessary for the purpose of disposing of arrears of pending cases." E

But Venkataramiah, J (as the then was) gave a dissenting opinion concluding thus :

"For the reasons given above, I am of the view that the Union of F Government, which has the responsibility of appointing sufficient number of Judges in every High Court should be directed to review the strength of permanent Judges in every High Court, to fix the number of permanent Judges that should be appointed in that High Court on the basis of the workload and to fill up the vacancies by G appointing permanent Judges. while making these appointments the Union Government should first consider the cases of additional Judges who are now in office for appointment as permanent Judges in those vacancies. A writ in the above terms shall be issued to the Union Government." H

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

A The learned Judge, therefore, ruled that mandamus could be issued to the Government to review the strength of permanent Judges to be appointed in each High Court on the basis of the work-load.

Tulzapurkar, J expressed his opinion holding:

B "On a consideration of the two relevant articles, namely, 216 and 224 (1) it seems to me quite clear that Article 216 unquestionably casts a mandatory obligation on the President (appointing authorit:y) to provide adequate strength of permanent Judges in every High Court to cope with and dispose of its normal business C and further to review periodically such permanent strength. The word "shall" and the further words "such other Judges as the President may from time to time deem it necessary to appoint" occurring in the article are a clear pointer in that direction."

D The leaned Attorney General has submitted in his written arguments that fixation of Judge strength is no justiciable.

As we have found that duty cast upon the President under Article 216 is a mandatory obligation, the failure to perform this obligation will certainly result in negation of the rule of law by the law' delay as opined E by my learned brother, J.S. Verma, J. and hence it must be justiciable. Accordingly, such failure to perform that mandatory duty is justiciable to compel performance of that duty to the extent and the manner indicated in his separate judgment. Further, as pointed out by him (J.S. Verma, J.) the area of justiciability does not extend further to enable the Court to· F review and fix the actual Judge strength itself, but it can require the performance of that exercise in accordance with the recommendation of the CJI.

Trans[er of Judges

G With regard to the interpretation of Article 222 regarding transfer of Judges from one High Court to another, I entirely agree with the reasoning and conclusion arrived at by learned brother, J.S. Verma, J.

CONCLUSIONS

H Though I have given my reasons separately, as indicated even at the

ADVOCATESASSN. v. U.O.I.[PANDli\N,J.] 877

threshold of the judgment, I am in agreement with the conclusions of my A learned brother, J.S. Verma, J regarding the process of appointment of Judges, initiation of the proposal for appointments and the right of primacy to the opinion of Chief Justice of India in the matter of appointment of Judges, !ransfer of High Court Judges/Chief Justices of the High Courts, fixation of Judge-strength, the summary of which is given under Point Nos. B (1) to (8), (10), (12) and (13).

In view of the above conclusion, the majority opinion in S.P. Gupta's case insofar as it is in conflict with the view relating to the primacy of the opinion of the Chief Justice of India in matters of appointments, transfer and the justiciability of these matters as well as in relation to Judge-strength stands over-ruled.

In addition to the above, the Government which is accountable to the people, should have the right of suggesting candidates to the concerned Chief Justice for consideration but the government has no right to directly send the proposal for appointments bypassing the Chief Justice concerned.

The suggestions made by the Government whether Central or State, should be routed only through the Chief Justice of India in the matter of appointment of a Judge to the Supreme Court and Chief Justice of the High Court in the matter of appointment of a Judge to the concerned High E Court, whose opinion with regard to the acceptance or disapproval of the said proposed candidates by the Government on the materials placed before him, will be decisive of the matter. Though appointment of Judges to the superior judiciary should be made purely on merit, it must be ensured that all sections of the people are duly represented so that there may not be any grievance of neglect from any section or class c;f society.

The above conclusions of ours may amount to small step for the law but a giant leap for real justice.

The questions referred are answered as above and these matters are .G disposed of accordingly. No order as to costs.

I am grateful for concurrence on the main points.

J.S. Verma H

878 SUPREME COURT REPORTS [1993) SUPP. 2 s.c:R.

·A I have carefully perused your erudite and elaborate opinion in the Nine Judges' Bench matter, expressing your agreement with the con- clusions recorded by Brother Verma, J. on his behalf and on behalf of Brothers Ray, Anand, Bharucha, JJ. and myself on points 1to8, 10, 12 and 13.. B

{YOGESHWAR DAYAL)

I have carefully perused your considered and erudite judgment in the C Nine Judges' Bench matter and thank you for expressing your concurrence with the conclusions recorded by Brother Justice Verma on his behalf and also on behalf of myself and three other Brother Judges on points 1 to 8, 18, 12 and 13.

D {G.N. RAY)

I have carefully perused your erudite and elaborate opinion in the Nine Judges' Bench matter, expressing your agreement with the con- E clusions recorded by Brother Verma J. on his behalf and on behalf of Brothers Yogeshwar Dayal, Ray, Bharucha JJ. and myself on points 1 to 8, 10, 12 and 13.

F { DR. A.S. ANAND)

I have read with due care your judgment in what I may call the second Judges' case, May I very respect fully say that I stand by the judgment written on my behalf and that of Brothers Dayal, Ray and Anand by Brother Verma, May I also say that I am very gratified that you have, broadly, agreed with us and supported our conclusions by your learning and eloquence.

(S.P. BHARUCHA) H

ADVOCATES ASSN. v. U.0.1. (AflMADI, J.] 879

AHMADI, J. When a Seven-Judge Constitution Bench of this Court A commenced the hearing of the writ petitions questioning the constitutional validity of the circular letter dated March 18, 1981 issued by the then Union Minister for Law, Justice & Company Affairs, by which thP. consent of Additional Judges serving in different High Courts and those whose names were already proposed or may in future be proposed for elevation to the High Court was sought for the transfer/initial appointment to any other B High Court, it was thought that the storm raised by the controversial circular would eventually subside and the dust would settle down by an authoritative pronouncement of this Court. Immediately after the circular was issued it was engulfed in a serious controversy and passionate appeals to protect the independence of the judiciary were made from different C quarters as it was generally assumed to be an attempt on the part of the executive to trifle with judicial independence. The first salvo was fired by Shri Iqbal Chagla, an advocate practising in the Bombay High Court, by filing a writ petition wherein he impleaded the Union Law Minister as respondent No. 1 and the Union of India as respondent No. 2 with 10 other D Additional Judges of the High Court. A learned SingJe Judge of the High Court admitted the Writ Petition, issued rule and granted interim relief restraining respondents Nos. 1 and 2 from further implementing the said circular letter. Two other advocates S/Shri V.M. Tarkunde and J.L. Kalra, practising in the Delhi High Court, also filed Writ Petitions questioning the legality and validity of the disputed circular and sought similar and E certain other incidental reliefs. The fourth Writ Petition was filed by Shri S.P. Gupta an advocate practising in the Allahabad High Court. It seems that he filed a Writ Petition on the same day on which the circular was issued but amended the same with a view to assailing the circular. Meanwhile, it appears orders regarding the transfer of Mr. Justice M.M. F Ismail, Chief Justice of the High Court of Madras, as Chief Justice of the High Court of Kerala, came to be issued. This order was challenged by way of a Writ Petition under Article 32 of the Constitution in this Court. Two other Writ Petitions were filed in the Madras High Court questioning the transfer of Mr. Justice M.M. Ismail. Since, in the meantime, Mr. Justice K.B.N. Singh, Chief Justice of Patna High Court, was transferred as Chief G Justice of the High Court of Madras, the said transfer was also challenged in the said two Writ Petitions. Similarly, two advocates practising in the High Court of Patna also challenged the constitutional validity of the transfer orders concerning Mr. Justice M.M. Ismail and Mr. Justice K.B.N. H

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

A Singh. All these eight Writ Petitions were transferred to this Court under Article 139-A of the Constitution. There was yet a Special Leave Petition No. 1509 of 1981 directed against the summary rejection of a Writ Petition by the Patna High Court challenging the constitutional validity of the order of transfer of Mr. Justice K.RN. Singh which was pending before this B Court. Both the groups of Writ Petitions, those questioning the constitu- tional validity of the disputed circular and those questioning the con- stitutionality of the transfer orders were heard together by the Constitution Bench. The Writ Petition filed by Shri S.P. Gupta was treated as the lead petition.

C A preliminary objection was raised on behalf of the respondents to the maintainability of the Writ Petitions on the ground that the petitioners who were lawyers practising in different Courts had no locus standi to maintain Writ Petitions. This contention was brushed aside by the Con- stitution Bench on the ground that they were vitally concerned with the independence of the judiciary and the exercise of power to appoint Judges to the High Court. Since the question of locus standi has not been raised before us we need say no more in that behalf.

Several issues were raised before the Constitution Bench. The pivotal issue related to the content of the concept of judicial independence. It was the kingpin around which the submissions concerning the other issues revolved. The main issues which we need to notice were (i) whether the Court can issue a mandamus for fixation of the strength of judges of the High Court under Article 216 of the Constitution, (ii) whether Article 222(1), properly construed, covered consensual transfers only (iii) the nature of 'consultation' with the Chief Justice of India which must precede any transfer effected or any transfer policy finalised under Article 222(1), (iv) whether among the opinions of the constitutional consultees under Article 217(1), primacy must be accorded to the opinion of the Chief Justice of India, and (v) whether the circular in question held out a direct threat to the concept of judicial independence, inasmuch as, it purported to secure the consent of the Additional Judges and those whose names were already proposed for appointment as High Court Judges on pain of their being discontinued or dropped from consideration if they failed to consent to their transfer. Certain other incidental issues were also con- sidered butit is unnecessary to notice them as they have no bearing to the points raised before us.

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 881

Before we set out the conclusions recorded on the issues of great importance projected before the Constitution Bench, we deem it proper to give an abridged version of the factual background in which these momen- tous issues arose for decision. Although the immediate cause for moving the High Courts was the controversial circular-letter of the Law Minister, certain other events projected in the writ petition filed by Shri V.M. Tarkunde in the Delhi High Court need mention. In that petition beside assailing the controversial circular-letter the petitioner also assailed the practice of appointing additional Judges in the High Courts for short terms. Three additional Judges of the Delhi High Court who had initially been appointed for a period of two years w.e.f. March 7, 1979 and whose term was expiring on the midnight of March 6, 1981 were further appointed as additional judges for a period of three months. The petitioner contended that such short term appointments were not justified having regard to the language of Article 224 of the Constitution and were in any event subver- sive of the independence of the judiciary. The petitioner, therefore, sought a mandamus to direct the Central Government to convert the posts of additional Judges into permanent ones. He contended that in any event since there existed a vacancy in a permanent post, the seniormost of the three additional Judges should be appointed as a permanent Judges to fill the said vacancy and the ,term of the other two additional judges should be extended to two years. The claim made on behalf of the Government that Article 224(1) only fixes the maximum period of two years at a time and does not limit the Government's discretion in the matter of the period for which an additional judge can be appointed provided it does not exceed the ceiling of two years regardless of the increase in the court's business raised the question regarding the true scope and import of Articles 216, 217(1) and 224(1) of the Constitution. In the backdrop of these facts the F Constitution Bench by a majority of 4:3 concluded that among the opinion of the three constitutional functionaries the opinion of the Chief Justice of India does not enjoy primacy over the other two opinions in the matter of . appointment of judges. By a majority of 6:1 the court held that on a plain reading of Article 222(1) it cannot be argued that the consent of the judge proposed to be transferred is a sine qua non to the exercise of the power G of transfer conferred on the President. Bhagwati, J. however stuck to his view in the Union of India v. Sankal Chand Himatlal Sheth & Another, [1978) 1 SCR 423, that the requirement of consent of the i;:oncerned judge must be read in Article 222(1) to protect the independence of the judiciary. H

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

A Even there the majority did not subscribe to this view as it resulted in granting a veto to the concerned judge. While upholding the non- ~xtension of Shri Justice Kumar after the expiry of his term and the transfer of Chief Justice Shri K.B.N. Singh the court held by a majority that a mandate could not be issued to the President for the fixation of Judge strength by invoking B Article 216 of the Constitution. There was unanimity on the point that the Government's claim that the Constitution empowered it go grant short term extensions of three months or six months was not well founded. The Court, however, ruled that such short term appointment could be coun- tenanced only if there existed strong reason for believing that the services of the Additional Judge would not be required for two years or that there C existed compelling reasons which necessitated a short term appointment. The Court further held that ordinarily if there is a vacancy in the sanc- tioned strength of permanent judges, there would be no justification for appointing an Additional Judge. The majority of the judges, however, took the view that in the absence of judicially manageable standards for control- D ling or guiding the discretion of the Government for the performance of the duty under Article 216, a mandamus could not be issued to secure the fixation of Judge strength for each High Court. However, taking note of the Court's anxiety at the inordinate delay in filling up vacancies and the inadequacy of the Judge strength in the context of docket explosion, the learned counsel for the Union of India assured the Court that the Govetn- E ment had already decided to increase the number of posts of permanent Judges in various courts keeping in view the load of work. This, in brief, is the import of the seven-Judge Constitution Bench decision in S.P. Gupta, etc. etc. v. Union of India & Ors. etc. etc., [1982] 2 SCR 365, pronounced on December 28, 1981. F . The general belief that the Constitution bench judgment would set at rest the misgivings and controversy sparked by the letter of the Law Minister was soon belied. Doubts were expressed regarding the correctness of the majority view that the opinion of the Chief Justice of India as one of the consultees under Article 217(1) of the Constitution was not entitled to primacy vis-a-vis the other two consultees and that a mandamus could not issue in regard to the executive function of fixation of judge strength under Article 216 of the Constitution. Criticism was also levelled against certain observations made by the majority judges in regard to the concept of judicial independence. Even the view that the consent of the judge proposed to be transferred to another High Court was not a condition

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 883

precedent to transfer under Article 222(1) of the Constitution was ques- A tioned. This becomes evident from the critical discussion of the issues arising from the findings of the Constitution Bench in S.P. Gupta's case in Part III of Chapter XXV of Seervai's Constitutional Law of India, Volume II, Third Edition (1984). The controversy continued to simmer and the events that followed the decision in S.P. Gupta's case in regard to judicial appointments to superior courts were being closely monitored. Three Writ Petitions Nos. 13003 of 1985, 1303 of 1987 and 302.of 1989 came to be filed under Article 32 of the Constitution by Shri Subhash Sharma, a practising Advocate of this Court, the Supreme Court Advocates on Record Associa- tion and Honorary Secretary, Bombay Bar Association, respectively, seek- ing a mandamus commanding the Union of India to fill up the vacancies in the Supreme Court and several High Courts and certain other incidental reliefs. These writ petitions were clubbed together as common pleas were raised and the reliefs sought were more or less similar in nature. In response to the rule issued, the Union of India entered an appearance and contended that the petitions were not maintainable as the question of filling up the vacancies in the superior courts was not justiciable as held in S.P. Gupta's case. This objection raised by the learned Attorney General was repelled by the Court drawing a distinction between fixing of Judges strength or selection of judges and filling up of existing vacancies. Since the relief claimed belonged to the latter issue the matter in issue was not concluded by the ratio in S.P. Gupta's case. With the Change in Govern- E ment at the Centre, the succeeding Attorney General Shri Soli Sorabjee withdrew the objection and stated that in his view it was Che constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and default, it any, could be remedied by a court's directive. The two-Judge Bench which heard the submissions felt that not F sufficient attention was paid to filling up of vacancies in good time and instead in Kerala Judge strength was actually reduced by two posts without proper justification. Their Lordship also doubted the correctness of the majority view in S.P. Gupta's case in this behalf and felt that it required reconsideration. J'ointing to the fact that an independent non-political judiciary is crucial to the sustenance of our chosen system, their Lordships G prima fade felt that the majority view in S.P. Gupta's case not only seriously detracts from but also denudes the primacy of the Chief Justice of India's opinion which is implicit in our constitutional scheme. Consistent with the constitutional purpose and process, it is imperative that the role of the H

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

A institution of the Chief Justice of India be recognised as crucial. So observing, their Lordships directed as under :

"The view which the four learned Judges shared in Gupta's case, in our opinion, does not recognise the special and pivotal position of the Institution of the Chief Justice of India. B The correctness of the opinion of the majority in S.P. Gupta's case relating to the status and importance of consultation, the primacy of the position of the Chief Justice of India and the view that the fixation of Judge strength is not justiciable should be reconsidered C by a larger bench."

The first and the third Writ Petitions were disposed of on the statement of the learned Attorney General but the second Writ Petition filed by the Advocates on Record Association was kept pending. It was directed that the papers of the said Writ Petition be placed before the learned Chief D Justice of India for constituting a Bench of Nine Judges to examine the aforestated two questions, namely, the position of the Chief Justice of India with reference to primacy and secondly, justiciability of fixation of Judge strength, afresh. Accordingly the present Nine- Judge Bench came to the constituted. The petitioners and their allies (intervenors) contended for a E reconsideration of the majority view in S.P. Gupta's case on the aforesaid two points while the Union of India and the States contended that the majority view in the case was correct and did not call for reconsideration.

The battle lines between the two contesting groups are clearly drawn. The main weapon in the armory of the petitioners and their allies is p 'protection of the independence of the judiciary'. The battle cry is that the independence of the judiciary is imperilled by the majority view in S.P. Gupta's case which in effect has surrendered the independence of the judiciary to the executive on the platter in flagrant violation of the doctrine of independence enshrined in Article 50 of the Constitution. Counsel after counsel tried to impress upon us that if the majority view in S.P. Gupta's G case is allowed to stand there is a real danger to the concept of judicial - independence which is an article of faith and a basic feature of our Constitution. Although they used different instruments they played the same tune of judicial independence being in peril. They travelled by different routes but their destination was the same, namely, primacy must H rest in the judiciary. They made a fervent plea that the Court should bear

ADVOCATESASSN. v. U.O.I.[AHMADl,J.] 885

in mind the historical background of the development of this doctrine in A Britain and should be alive to the long and gruelling struggle which British Judges had to put up against the Monarch and the sacrifices that strong willed judges like Sir Edward Coke had to make to realise the dream of an independent jadiciary, independent from all including the executive and the legislature. Let their sacrifices not go in vain was the emotive and impassioned plea made before us. Counsel submitted we in India inherited the said noble concept from the Britishers who introduced their judicial system and common law doctrines in our country and our founding fathers, wisemen as thr.y were, decided to capsulise it by directing the State 'to take steps to separate the judiciary from the executive in the public services of the State'. Counsel for the petitioners and their allies, therefore, argued that the constitutional scheme in regard to the selection and appointment of judges of the Supreme Court and the Chief Justice and Judge of the High Court and the transfer of the latter must be viewed in the backdrop of this concept which is the conscience of the Constitution. D Shri F.S. Nariman, Learned senior counsel, who opened the submis- sions on behalf of the petitioners emphasised that insofar as appointments by the President to non-elective constitutional offices are concerned, it is only in the case of appointments to the higher judiciary that provision is made for prior 'consultation' with certain constitutional functionaries in- cluding the Chief Justice of India. He invited our attention to articles 148, E 155, 280 (1), 316(1), 324(2), 338(1), 344(1) and 350(b) to point out the language used in regard to appointments to be made by the President to certain non-elective non-judicial posts. This is so because, counsel sub- mitted, the framers of the Constitution were alive to the need to insulate the judiciary to protect its independence. On the assumption that the F consultees would be in a better position to assess the suitability and competence of the candidate proposed for appoint111ent, counsel sub- mitted, that this requirement of consultation with members belonging to the judicial family and in particular the Chief Justice of India was provided for in the Constitution with a view to institutionalise the judiciary and make an autonomous body wholly independent of the executive in its own field. G Since the concept of judicial independence is inextricably linked or con- nected with appointments to judicial offices, it is essential that the process of appointments to the Supreme Court and the High Courts should be finalised as per the opinion given by the judicial wing. The process of consultation, it must therefore be understood, was introduced to subserve H

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

A this objective of the Constitution and hence the provisions cannot be given a narrow or literal meaning. This is so because the Constitution has not used the word 'consultation' in the limited sense of interaction between high constitutional functionaries i.e. the President and the Chief Justice of India, but in the wider sense of seeking binding advise for making the appointment. The requirement of prior consultation is not an idle formality but a constitutional obligation intended to operate as a restriction or limitation on the President's power of appointment. The link between the duty to consult and the ultimate exercise of power to appoint is inextricable connected with the advise received from the consultee thereby making the entire process of appointment an integrated one. It is, therefore, difficult to imagine that the makers of the suprema lex intended the advise of the consultees to form a link which could be snapped at any time. If the power can be exercised only after consultation, consultation must be meaningful and purposeful which it will not be if it is not made binding on the executive. Art. 124(2) read as a whole does indicate plurality of consult- D ation; sq also Article 217(1) and hence if there is a difference of opinion among the consultees, the Central Government must place the entire material before the Chief Justice of India and seek his opinion thereon. Once the opinion is expressed by the Chief Justice of India after weighing the material placed before him and the view of the other consultees, it is incumbent on the executive to accept the same view and advise the Presi- E dent accordingly under Article 74(1) of the Constitution so that the Presi- dent may acting on that advise based on the opinion of the Chief Justice of India, make the necessary appointment. In regard to the appointment of Chief Justice of India, counsel submitted, that there is no provision for consultation in the Constitution and it is for that reason that a healthy F convention has developed of appointing the senior most Judge of the Court as the Chief Justice of India. According to him this convention is in keeping with the concept of independence of judiciary as it excludes the possibility of executive interference in the matter of choice of the next Chief Justice of India. Referring to the affidavit of Mr. S.K. Bose dated 22nd April, 1993 he submitted that the fact that all except 7 appointments out of a total of G 547 appointments made in the last decade were in accordance with the opinion of the Chief Justice of India also signifies that barring a few exceptions even the executive has conceded primacy to the opinion of the Chief Justice of India. Counsel, therefore, emphasised that the decision of the majority in S.P. Gupta's case requires re- consideration as their opinion H

ADVOCATES ASSN. v. U.0.1. [AHMADI,J.) 887

was founded on an erroneous interpretation of the relevant constitutional provisions. He also submitted that the independence of the judiciary would be diluted if vacancies are not filled in promptly and if the Judge-strength is not revised from time to time as ordained by Article 216 of the Constitu- tion. He, therefore, submitted that if the executive fails in the discharge of its duty or obligation under Article 216 of the Constitution, a writ of mandamus can certainly issue commanding it to perform that duty for otherwise Article 216 will be rendered a dead letter. He, therefqre, prayed for an appropriate mandamus to issue as prayed. Other learned counsel Messrs. Kapil Sibal, P.P. Rao, R.K. Garg and S.P. Gupta reinforced the submissions of Mr. Nariman adding their own flavour and emphasis. Mr. Shanti Bhushan and Mr. Ram Jethmalani sought to reach· the same des- C tination through a different route.

Shri Kapil Sibal submitted that in order to preserve and protect the concept of an independent judiciary as enshrined in Article 50 of the Constitution, it is essential that consultation must be institutional in the D sense that the Chief Justice of India must before expressing his view consult two or three of his senior colleagues· who can enlighten him on the merit of the recommendation made by the Chief Justice of the concerned State. Such a view when expressed would be the view not merely of the Chief Justice of India but of the judicial family as such; it must, therefore, carry weight and should be binding on the President of India. Mr. P.P. Rao E pointed out that under Article 233 of the Constitution appointments of person to be District Judges in any State has to be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to that State. The expression 'district judge' is defined in Article 236(a) of the Constitution. He submitted that in law the appointments are p made on the recommendation of the High Court which recommendation is held to be binding on the executive. If that be the understanding of 'consultation' under Article 233 of the Constitution there is no reason why same meaning or understanding should not be read into the concept of consultation under Article 124(2) and 217(1). Therefore, submitted coun- sel, consultation with the executive can only be in respect of the character G and antecedents of the concerned candidate and not with reference to this competence and suitability. If there is any difference of opinion between the Governor and the Chief Justice of the High Court,. the ultimate view of the Chief Justice of India must prevail as the institutional head. Mr. R.K. Garg complained that the majority view in S.P. Gupta's case has tended to H

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A erode the respect for judges appointed after that decision and has conse- quently robbed them of the confidence and sense of pride in being mem- bers of the higher judiciary, so essential for the efficient discharge of his duties. He submitted that to restore this respect and confidence it is essential that the majority view in S.P. Gupta's case on the question of B primacy of the Chief Justice of India is set right. He also submitted that the delay in making the appointments occasioned on account of executive interference is unpardonable and the courts cannot and should not be silent spectators to executive interference, indifference or neglect. He was also in favour of setting up of a perm~nent body to monitor the judge- strength from time to time in different High Courts and the Supreme Court C so that timely revision of judge-strength can be made on the basis of the recommendation of that body. Mr. S.P. Gupta who had filed the earlier petition leading to the constitution of Seven-Judge Bench, also supported the submissions of Mr. Nariman on the question of primacy and said that the court's power to issue a mandamus for performance of the duty D enjoined by Article 216 of the Constitution cannot be denied on the specious plea of want judicially manageable standards for controlling and guiding the discretion of the executive.

Mr. Shanti Bhushan pointed out that prior to the 42nd Amendment of the Constitutional in 1976, there was no express provision in the Con- E stitution which provided that the President shall be bound by the advise. of the Council of Ministers. Even after the insertion of the expression 'shall' in. Art. 74(1) the President is bound by the advice only in relation to the exercise of executive functions and not other constitutional obligations or duties. By Article 53 the executive power of the Union is undoubtedly p vested in the President which he must exercise either directly or through officers subordinate to him in accordance with the Constitution. Art. 73 indicates the scope of the executive power of the Union which broadly extends to matter in respect whereof Parliament is empowered to make laws i.e. matters enumerated in List I and III of the VII Schedule to the G Constitution. Since matters pertaining to the appointment of Judges of the Supreme Court and the High Court are not covered under any entry in the said Lists the exercise of the President's power of appointment falls outside the scope of executive power and hence the President cannot be held bound by the advice of the Council of Ministers. Drawing our attention to the residuary entry in List I, counsel submitted, it cannot cover the field pertaining to the appointment of Judges of Supreme Court and the High

ADVOCATES ASSN. v. U.0.1. (AHMADI, J.] 889

Court. That being so, according to counsel, the President cannot be held bound by the advise of the Council of Ministers in the matter of appoint- ments to the superior judiciary. Since the Chief Justice of India is best equipped to assess the merit, competence and suitability of given candidate for appointment to high judicial office, the constitutional scheme mandates that the President must abide by the advise of the Chief Justice of India and it is in that sense that the latter's opinion must have primacy over the opinions of other constitutional consultees, on the question whether a writ of mandamus can issue for filling up the vacancies and for fixation of judge strength. Counsel adopted the submissions made by Shri Nariman. Shri Ram J ethmalani assigned six reasons in support of the contention that the majority view in S.P. Gupta's case needs re-consideration. These are : c (i) no attention, in any case not adequate attention, was paid to Articles 50 and 51A,

(ii) principles of interpretation valid for statutes were applied in interpreting the Constitutipn, D (iii) inadmissible material in the form of speeches of members of the Constituent Assembly including Dr. Amedakar were used and relied upon,

(iv) it was err.oneously assumed that the President in Articles 124(2) and 217(1) meant President aided and advised by the Council of Ministers, E (v) primacy was wrongly denied on the ground that the Chief Justice of India held a non-elective office which lacked public accountability, and

(vi) the decision in S.P. Gupta case is per incurium. F In addition to these submissions he also supported the approach, albeit with some variations, of Mr. Shanti Bhushan. On the question of the court's power to issue a mandamus for fixation of j11dge-strength, counsel sub- mitted that if the judicial system is no manned by judges adequate in . number and possessed of high integrity and competence, the judiciary will be crippled and justice will become a teasing illusion and the fundamental G rights a mirage. He, therefore, shared the view of Mr. Nariman that if the executive fails in the performance of its duty under Article 216 and betrays administrative indifference or perversity, it is the bounden duty of the court to pull up the executive and command it to perform. its constitution obligation. He concluded by saying that the setting up of a National Judicial H

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

A Commission which was contemplated by a constitutional amendment may provide the answer but till that materialises court must authoritatively lay • down that the opinion of the Chief Justice of India shall be binding on the President. ( On behalf of the Union of India Mr. K. Parasaran submitted that while independence of judiciary is indisputably one of the cardinal prin- ciples of the constitution it is only a means for achieving a laudable end, ,- namely, dispensation of justice. In all democratic countries, the concept of independence of the judiciary is generally understood to mean inde- pendence from all external and internal pressures, including executive and legislative influence, but that has never been understood to mean that the head of the State is rendered a rubber stamp in the matter of appointment of judges to the Supreme Court and the High Court by reading the requirement of 'consultation' to mean 'concurrence' of the head of the judiciary. He poinud out that neither Article 124(2) nor Article 217(1) D conveys the impression that provision in regard to consultation with the Chief Justice of India was made with a view to giving primacy to the opinion of the Chief Justice of India. According to him, appointment of Judges to the superior court under the Constitution is an executive function and since the executive power vests in the President of India the ultimate decision must rest with that authority albeit aided and advised by the E Council of Ministers. Similarly, the Governor is also required by virtue of Article 163(1) to act in accordance with the aid and advise of his Council of Ministers. There is no hierarchy amongst the consultees named in Article 217(1) since the exercise is purely executive in character and not judicial or quasi-judicial. In the matter of administrative control it must be p borne in mind that the Chief Justice of India has no administrative control over the High Courts whereas the High Courts have administrative control over the subordinate judiciary. It is for that reason that the recommenda- tion made by the High Court under Article 233 of the Constitution in regard to the appointment of district judges is trealed differently from the appointments to be made to the superior judiciary under Article 124(2) G and 217(1) of the Constitution. In the absence of the principle of hierarchy in said two Articles no question of giving prim:i.cy to the opinion of the Chief Justice of India can at all arise. The executive being accountable to the people through the Parliament has, therefore, been enjoined with the duty to take the responsibility for the appointment so that if a wrong appointment is made it is answerable to the people. If the appointment is

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.) 891

made solely on the opinion of the Chief Justice of India and it is later found to be erroneous it will cause avoi\fable embarrassment to the Chief Justice of India as happened in the case of Shri Kumar Padma Prasad v. Union of India & Ors., (1992] 2 SCC 428, in which case the appointment of Shri K.N. Srivastava made with the concurrence of the Chief Justice of India was struck down by this Court on the ground that the appointee did not possess the qualification prescribed by Article 217(2). Counsel, therefore, sub- mitted that the question of independence of the judiciary is a pos~-appoint­ ment guarantee and does not figure at the pre-appointment stage. He i pointed out that in all democratic countries including the United Kingdom, the United States of America, Australia and Canada the appointment of Judges to the superior courts is in the hands of the executive and not the judiciary. So far as our Constitution is concerned, it has taken a middle course and while conferring the power mi executive it as conditioned it by the requirement of prior consultation with certain constitutional functionaries to ensure that a proper selection is made on merits and the margin of error is minimised. In support of this submission he also invited our attention to the speech of Dr. Ambedkar and other members of the Constituent Assembly and laid stress on the fact that the amendment proposed by Shri Pocker Sahib to provide for the 'concurrence' of the Chief Justice of India ~stead of mere 'consultation' was defeated which, said he, was a positive indication of the intention of the Constituent Assembly and militates against the contention favouring primacy to be accorded to the opinion of the Chief Justice of India. He, therefore, submitted that it would tantamount to rewriting the Constitution and usurpu.tion of power if the word 'consultation' is construed to mean 'concurrence' in Articles 124(2), 217(1) and 222(1) of the C:onstitution. He negatived the contentions of Mr. Shanti Bhushan and Mr. Ram Jethmalani F on the ground that under the scheme of our Constitution there is no vacuum so far as legislative power is concerned since if there is no specific entry in any of the three list in the Seventh Schedule of the Constitution, the power can always be traced to Article 248 read with Entry 97 in List I, which confers residuary powers. As regards the contention that a con- vention has grown over a period of time and has crystallised into a rule G that no appointment would be made contrary to the view of the Chief Justice India, he invited our attention to the affidavit of Mr. S.K. Bose dated 22nd April, 1993 wherein it is disclosed that in the last decade from 1st January, 1983 to 10th April, 1993 in all 547 appointments came to be H

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A made to different Courts out of which 7 appointments (2 in January, 1983, 2 in July, 1983, 1 in August, 1983, 1 in September, 1985 and 1 in March, 1991) were made contrary to the views of the Chief Justice of India negativing any such hardened convention. He submitted that the endeavour on the part of the executive to accord with the views of the Chief Justice B of India should not be construed as the executive having conceded primacy to the Chief Justice of India. Its true significance is that the executive attaches great weight to the views of the Chief Justice of India as em- phasised in S.P. Gupta's case but in certain cases, the number whereof must of necessity be minimal, departs from his 'views if the situation so demands. The endeavour of the executive to make the appointments with mutual agreement attaching great weight to the views of the Chief Justice of India shows its desire to avoid conflict as far as possible unless inescapable. In the end he insisted that the majority view in S.P. Gupta's case lays down the correct law and no interference is called for. All the Advocates General, except the Advocate General of Karnataka, have adopted the submissions of Mr. Parasaran. The Advocate General of Karnataka has, however, expressed the view that the Chief Justice of India holds a unique position under the Constitution insofar as the India Judiciary is concerned and hence his opinion is entitled to great weight. So the executive cannot appoint a person whose appointment is opposed by the Chief Justice of India and similarly the Chief Justice of India cannot expect the executive to appoint a person whose candidature does not meet with executive approval. In other words the executive wing is not bound to appoint a person whose name is cleared by the judicial wing, including the Chief Justice of India, for good and valid reasons but it cannot appoint a person who has not been cleared by the Judicial wing. On the question of fixation of the judge-strength he contended that the Chief Justice of the High Court and the Chief Justice of India are best suited to take a decision in this behalf and made a recommendation to the President who should invariably accept the same. In his view, therefore, the majority view in S.P. Gupta's case needs to be modified or explained as above.

G Mr. Milon Banerjee, the learned Attorney General, was present in the Court on 5th March, 1993 when the aforesaid petitions were called on for hearing before this Bench. At the request of the Court he accepted notice on the two questions formulated by the Division Bench in Subhash Sharma's case (supra). Subsequently he was served with a written notice dated 16th March, 1993 in which four questions were formulated. The

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 893

learned Attorney General states that the four questions formulated in the written notice dated 16th March, 1993 are not in conformity with the two points referred to this Bench by Subhash Shanna's case. On the principal issue of primacy of the learned Chief Justice of India, the learned Attorney General submitted that the constitutional provisions in regard to appoint- ment of judges to the superior court have to be examined keeping in view the fact that the consultation contemplated at the pre-appointment stage would be .of the same intensity as consultation at the post-appointment stage. He submitted that before entry into the judicial family the executive has a larger say in the process of consultation than at the post-entry stage for the simple reason that at the post-entry stage the independence of the judiciary assumes considerable significance. He also submitted that the word 'consultation' is used in contra-distinction to the word 'concurrence' in Articles 124(2) and 217(1) and hence it would be unfair to construe the former to mean the latter and thereby confer a veto on the Chief Justice of India not contemplated by the provisions of the Constitution. He sub- mitted that consultation at the post-entry stage would entitle a greater weight to be given to the opinion of the Chief Justice of India, for example, under Article 217(3) or 222(1) of the Constitution. Similarly, the word 'recommended' in Article 233(2) has a different connotation from consult- ation. In fact the.two clauses of Article 233 clearly bring out this distinction. He also submitted .that the concept of independence of the judiciary assumes greater importance at the post-appointment stage only and not at the pre-app.ointment stage. At the pre-appointment stage the executive has an equally important role to play in the choice of a candidate for appoint- ment and it was for that reason that the attempt to substitute the word 'concurrence' for 'consultation' did not find favour with the Constituent Assembly. The mere fact that normally the executive responds positively to the views of the Chief Justice of India cannot be misconstrued to concede the right of veto to the Chief Justice of India in the matter of appointment of a candidate or refusal to appoint a candidate. He submitted that the President is under an obligation to act on the aid and advise of the Council of Ministers and he cannot depart from the advice and accept the advice of the Chief Justice of India if there is a conflict. He submitted that in our constitutional scheme the question of primacy over other constitutional functionaries does not arise as there is no hierarchy amongst the consultees and such a view would be inherently inconsistent with the very concept of consultation. However, if by primacy it is meant that greater weight should H

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

A be attached to the view of the Chief Justice of India in the event of a difference of view amongst the consultees, this interpretation may perhaps be acceptable. In this connection, he submitted that the view of Pathak, J. in S.P. Gupta's case can be adopted. Lastly, he submitted that it two views are reasonably possible and he earlier decision has made a choice in favour B of one this bench should not disturb that choice by the exercise of review powers merely because the other view sounds more convincing unless the interest of public or the like compels such re-consideration. In the present case, submitted counsel, even the referring judgment does not say that such a compelling necessary for review has arisen.

C On the question of fixation of judge-strength, he submitted that there being no judicially manageable standards for the purpose of fixation of judge-strength it would be unwise to issue a mandamus to the executive as a number of varying factors with several imponderables enter the decision making and hence the Constitution has rightly cast the duty on the execu- D tive under Article 216 of the Constitution. At best in a given case the Court can, draw the attention of the executive to the need to revise the judge· strength and leave it to the executive to take an appropriate decision within a reasonable time. According to him Courts are hardly equipped to adjudi- cate on such matters which are essentially executive in nature and should, therefore, exercise restraint. In the end he urged that the Court should E confine itself to the two issues formulated in Subhash Shanna's Case and should refrain from going into the other questions as the pleadings are confined to those two questions only. Since the various State Governments as well as the Union of India and the various Advocates General were put to notice to respond to these two questions only, it would be unwise and p hazardous to go into the other questions which were raised by counsel for the petitioners and allies across the Bar without specific pleadings thereon. Any decision that may be rendered on such serious constitutional issues without proper pleadings would be hazardous and at best merely obiter and wisdom demands that the Court should refrain from answering those question. To put it in a nutshell, the learned Attorney General urged that the majority view in S.P. Gupta's case does not require re-consideration, that the concept of primacy of the Chief Justice of India cannot be spelt out from the constitutional provisions in regard to the appointment of judges to the superior judiciary and that in any event constitution cannot mean concurrence and the Chief Justice of India cannot be conferred that right of veto in the name of primacy. He submitted that at best when there

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 895

is a difference of opinion between the consultees under Articles 124(2) or A 217(1) the view of the Chief Justice of India may ordinarily prevfill unless there are strong, cogent and compelling reasons to disapprove of the same. But that opinion cannot be held to be binding on the executive. In other words, he submitted, that even if the court rejects his submission, at best the view of Pathak, J. in S.P. Gupta's case on the question of primacy of the Chief Justice of India can be adopted.

A word of caution before we proceed further. The Constitution is what the Judges say it is. That is because the power to interpret the Constitution vests in the Judges. A heavy responsibility lies on the Judges when they are called upon to interpret the Constitution, the responsibility is all the more heavier when the provisions to be construed relate to the powers of the judiciary. It is essential that complete objectivity is main- tained while interpreting the Constitutional provisions relating to the power of the judiciary vis-a-vis the executive in the matter of appointments to the superior judiciary to avoid any feeling amongst the other constitutional functionaries that there has been usurpation of power through the process of interpretation. This is not to say that the judiciary should be unduly concerned about such criticism but merely to emphasize that the respon- sibility is greater in such cases. To put it differently where the language of the Constitution is plain and the words used are no ambiguous, care should he taken to avoid giving an impression that fancied ambiguities have been conjured with a view to making it possible to place a convenient construc- tion on the provisions. If the words are plain and unambiguous effect must be given to them, for that is the constituent body's intent, whether you like it or not, and any seeming attempt to depart therefrom under the guise of interpretation of imaginary ambiguities would cast a serious doubt on the p credibility and impartiality of the judiciary. It would seem as if judges have departed from their sworn duty; any such feeling would rudely shock peoples' confidence and shake the very foundation on which the judicial edifice stands. The concern of the judiciary must be to fait)lfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in the judicial system. 'The one G public interest which the courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commended by the judicial system' said Lord Keith of Kinkel in Duport Steel Ltd. v. Sirs & Others, [1980] 1 All England Reporter.529 at 550. We can do no better than reproduce Lord Scarman's advice ~ the same case at page 551 of the H

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A Reporter:

"Great judges are in their different waysjudicial activists. But the Constitution's separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power B is to be confined by nothing other than the judge's sense of what is right (off as Selden put it by the length of the Chancellor's foot), confidence in the judicial system it becoming replaced by fear of it becoming uncertain and arbitrary in its application. society will then be ready for Parliament to cut the power of the judges. Their c power to do justice will become more restricted by law than it need be, or is today."

Having put ourselves to caution, rather made ourselves conscious of our special responsibility, we may now proceed to deal with the questions posed for our determination.

The concept of separation of powers is a well known fundamental political maxim which many modern democracies have adopted. Our con- stitution has not strictly adhered to that doctrine but is does provide for distribution of powers to ensure tha one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of p safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Con- stitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, G ~daunting courage and determination and resolute impartiality and inde- pendence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of third great country. There can be no two opinion at the Bar that an indedendent and impartial judiciary is the most essential characteristic

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 897

of a free society. Even though on the question that our judiciary should be independent of he executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept. Hence brief look into the historical background of the development of this concept in our country. B It is well-known that the concept of judicial independence in this country owes its origin to the development of this concept in England. In England for centuries the Monarch was the repository of all powers and the courts set up by him were accountable to none except him, he being an integral part of the system of administration of justice. This as a purely executive arrangement. However, during the 17th centruy things began to change following a clash between the Monarch and the Parliament, each vying for supermacy. In this tussle for supremacy both sought cover under law which brought the judiciary into sharp focus since it alone was com- petent to demarcate the functional boundaries between the privileges of the Crown and those of the Parliament. It is this situation which gave birth to the· doccrine of judicial independence. Both the Crown and the Parlia- ment realised the significance and the value of an independent judiciary. Yet the English Parliament was not prepared to loosen its grip over f'he judiciary and it fell to the lot of Chief Justice Coke to assert the functional freedom of the judiciary. When Parliament realised that the Crown was able to assert because of the pleasure doctrine,· it enacted the Settlement E Act of1700 whereby security of tenure was provided by making it subject to good behaviour and removal upon address by both Houses of Parlia- ment. Judges' salaries were to be ascertained and established. Thus the judiciary in England became independent of the Crown as well as the Parliament. But the situation was different in British colonies. Even though the English judiciary secured independence, neither the Crown nor the Parliament was prepared to concede it to the colonies. In 1759 when the Pennsylvania Assembly enacted a law requiring an address of the Assembly for removal of a Judge, the Privy Council disapproved of the measure as an attempt to make the judiciary dependent on the Colonial Assembly. Since the British Parliament wa!i supreme and could enact a law concerning colonies which would not be subject to court scrutiny, the unrepresented America! colonists suspected British intentions. Hence when they attained freedom they favoured total separation of all the three branches of govern- ment so that each would operate as a check on the exercise of power by the . other. The American concept of judicial independence, therefore, H

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A differs somewhat from the British concept. Our founding fathers were aware of these developments and, as we shall presently show, they steered a middle course.

Before we deal with our constitutional scheme regarding appoint- B ments to the superior judiciary, it would be advantageous to bear in mind the practice followed in Britain and other Common Law Systems as well as the United States. In Britain the Lord Chancellor enjoys a unique position of three-in-one. He is at once the head of the judiciary, Presiding Officer (Speaker) of the House of Lords and a member of the cabinet. This unique position enjoins that he ensure separation of powers and inde- C pendence of the judiciary. One of his responsibilities is to select and appoint judges and other judicial officers. To ensure that the appointees are of the highest professional calibre, integrity and judicial quality, certain guidelines laid down by Lord Chancellor's office are followed. Appoint- ments to the High Court and above being by invitation, the principle of wide consultation is followed. The views thus obtained are collated and recorded and after considering the same the proposal is put forward for appqintment. Lord Justice of Appeal and Judges of the Supreme Court of England and Wales are appointed by the Queen on the Prime Minister's recommendation. It will thus be seen that the process of appointment is essentially an executive one yet no one says that the England Judiciary is not independent, in fact it is recognised as fiercely independent.

Under the American system many state judges are elected; of those that are not, their appointments are subject to legislative concurrence. However, in the case of Supreme Court judges, the President makes the p nomination. While the requirements of merit, expertise, independence and public confidence are universal it is conceded that other factors, such as, ideology, political compatibility, etc., also figure prominently in the selec- tion process. During the 1984 Presidtntial Campaign when judicial ap- pointments were debated, Mr. Justice William Rehnquist is reported to have said: " there is no reason in the world why a President should not ........... appoint people....... who are sympathetic to his political or philosophical principles" and buttressed it by nothing that the President is the "one official who is elected by the entire nation" and, therefore, the public has "something to say about the membership of the court". (Washington Post, October 20, 1984 P.6). Besides political and idealogical compatibility, "representativeness" based on race, gender, etc., plays a

ADVOCATES ASSN. v. U.O.I. [AHMADI,J.) 899

measurable role in the choice of candidates. The ultimate aim, it would seem, is .to make the court reflective of' America's heterogeneity and thereby foster legitimacy and credibility for the institution in the eyes of the people. It is obvious, therefore, that in selecting the candidate for nomination to the Supreme Court, political and ideological views of the candidate are considered relevant and an attempt is made to give the Court B a representative look so that the Court derives legitimacy in the eyes of the people. The nomination made by the President must of cours~ be con- firmed by the Senate. The Senate too in the course of its deliberations tries to ascertain the nominee's ideological and political compatibility, his merit, competence, experience and suitability before approving or disapproving the nomination. It will thus be seen that the process of selecting a candidate C for appointment to the U.S. Supreme Court is solely an executive function which has the backing of the Senate. Surely, it cannot be argued that and was indeed not argued, the people of America who were jealous in enforc- ing the doctrine of separation of powers with a view to ensuring the total independence of the judiciary were at the same time willing to dilute it? D Their concept of judicial independence is clearly of post-appointment application. Once the nomination is complete and the candidate enters the judiciary family he must enjoy complete independence, both institutional and individual, and thyre should be no interference from any source, whatsoever, in the discharge of his judicial functions. E In Australia, judges are appointed by the executive in accordance with the statute. Appointment to the High Courts and other federal courts is by the federal government whereas appointment to the state courts is by the state governments. The appointments are made in the name of the Governor-General, or the Governor, in council. In reality they are depend- ent on cabinet d~cisiqns. Once appointed they are independent of the F executive. Thus t~~ Australian method of appointments contrasts with the system prevalent in the United Kingdom and the United States.

In Canada, appointments of judges of the Superior, District and County Courts in each province, except two, are made by the Governor- G General. In addition, each of the ten provinces has its own process of appointment of provincial judges to provincial courts. There is no unifor- mity but the appointments essentially ar~ by the executive..

In New Zealand, the role of the judiciary in the selection of judges H

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A is quite active. The Chief Justice of New Zealand is appointed by the Governor-General on the recommendation of the Prime Minister who ordinarily discusses the matter with the Attorney General. The latter seeks the opinion of the President of the Court of Appeal and, informally, of some other judges. Where appointments to the High Court are in the B offing, the Chief Justice prepares a list after consulting the other judges and makes a recommendation which the attorney General scrutinises. After making his own inquiries he consults the New Zealand Law Society and in receipt of a positive response sounds the candidate and on his or her agreeing the Cabinet is apprised. The Caoinet then makes a formal recom- mendation to the Governor- General who makes the appointment. c In India after the advent of the British, the judicial system underwent changes. The Courts set up by the East India Company were exclusively executive. Thereafter a new judicial system comprising three types of courts came to be introduced in the Prnsidency towns of Bombay, Calcutta and D Madras. The courts so constituted were replaced by the establishment of Supreme Courts in the said three Presidency towns. The Chief Justice and other Judges held office during the pleasure of the Crown although their salaries were ascertained. On the enactment of the High Courts Act, 1861, these courts were replaced in 1862 by High Courts. Under the Government of India Acts, 1919 and 1935 the power of appointment was exclusively with E the Crown, but under the latter Act the age of superannuation was fixed at 60 years subject to the Crown's power to remove a judge for mis- behaviour or mental or physical infirmity on the report of the Judicial Committee of the Privy Council. Thus judges enjoyed independence from the executive but continued to serve under the Crown's pleasure. However, F on account of the British culture of judicial independence, the judges of the High Court functioned without any executive interference or fear of interference. The Federal Court later strengthened this great tradition of judicial independence. The purpose of setting out this abridged historical background is to point out how the pendulum swung from total executive control to near total judicial independence except for the limited scope of G the pleasure doctrine. Our founding fathers were aware of these develop- ments in England, America and British India when they undertook the task of drafting the Constitution for free India. It will be noticed that even then the power of appointment was totally with the executive.

H Our Constitution envisages a three-tier judiciary with the subordinate

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 901

courts at the floor level, the High Court at the State level and the Supreme A Court at the Union level. The provisions in regard to Union Judiciary, i.e. the Supreme Court, are to be found in Chapter IV, those regarding the High Courts in the States in Chapter V and subordinate courts in Chapter VI of Part VI of the Constitution. We may first deal with the provisions relating to the subordinate courts which comprise Articles 233 to 237. B Article 233 provides for the appointment of 'District Judges', an expression defined in Article 236(a). Article 233(1) provides that appointments of persons to be and the posting and promotion of, District Judges in any State shall be made by the Governor of the State is consultation with the High Court exercising jurisdiction in relation to such State. It may be noticed that consultation is with the entire body of judges constituting the C High Court and not with a single individual like the Chief Justice of the High Court. Article 233(2) says that a person not already in service of the Union or the State shall be eligible to be appointed District Judge if he has a standing of not less than seven years at the Bar and is 'recommended' by the High Court for appointment. Under Article 235 the control over 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 a State and holding any post inferior to the post of District Judge shall be vested in the High Court. Article 237 empowers the Governor to direct that the provisions of this Chapter and any rules made thereunder shall apply in relation to any class or ·classes of Magistrates in the State as the may apply in relation to persons appointed in the judicial service of the State subject to such exceptions and modifications as may be specified. The expression "judicial service" is defined under Article 236(b) to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. F On a plain reading of Article 233 it becomes clear that the power to appoint District Judges is vested in the Governor of the State which he must exercise in consultation with or on the recommendation of the con- cerned High Court. Thus consultation with and recommendation of the High Court is a condition precedent to the exercise of power by the Governor of the State. G

We now move on to the provisions in regard to High Courts in the States. Article 214 ordains that there shall be a High Court for each State. Under Article 216 every High Court must consist of a Chief Justice and such other Judges as the President may, from time to time, deem it H

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A necessary to appoint. We may at this stage point out that the number of judges to be appointed in each High Court is 'as the President may from time to time deem it necessary to appoint.' A duty is, therefore, cast by this I.

provision on the President to review the judge strength from time to time if he deems it necessary to appoint more judges in the High Court he must B ensure an increase in the Judges-strength. Article 217(1) is of importance and may be reproduced :

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

(a) a Judges may, by writing under his hand addressed to the President, resign his office; E (b) a Judge may be removed from his office by the President in the manner provided in.clause (4) of Article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India."

The qualifications for appointment as a Judge of the High Court have been specified in clause (2) of Article 217. It provides that the candidate must have held for atleast 10 years a judicial office in the territory of India or he must have been an Advocate of a High Court or two or more such courts in succession for at least 10 years. The provision which was introduced in clause (c) by the Constitution 42nd Amendment placing a distinguished jurist in the zone of consideration for appointment came to be omitted by .H the Constitution 44th Amendment. Thus under Article 217(2) a person who

ADVOCATES ASSN. v. U.0.1. [AHMADI,J.] 903

does not possess the qualifications set out in clause (a) or (b) will be A eligible for appointment. Clause (3) was inserted by the Constitution 15th Amendment with retrospective effect. It says that if any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. It becomes abundantly clear on a B plain reading of Article 217(1) that the power to appoint a judge of the High Court is vested in the President and must be exercised by a warrant to be issued in that behalf under his hand and seal. This ·power, however, has to be exercised 'after' consultation with (i) the Chief Justice of India(ii) the Governor of the State and (iii) in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court. Once the consultation process contemplated under this Article is completeJ, the power to appoint a judge of a High Court is conferred on the President. Once appointed he will hold office until he attains the age of 62 years and as provided by Articles 121 and 211 his conduct in the discharge of his duties shall not be discussed in Parliament or any State legislature, except on a motion for his removal. He can be removed from his office only in the manner provided by Article 124(4) of the Constitution for the removal of a Supreme Court Judge. However, he shall vacate office on his being appointed by the President to be a Judge of the Supreme Court or on his being transferred by the President to any other High Court within the territory of India under Article 222(1) of the Constitution. Article 219 E provides that every. person appointed to be a Judge of a High Court shall, before he enters upon his office make and subscribe before the Governor of the State or some person appointed in that behalf by him an oath or affirmation according to Form VIII in the Third Schedule meant for High Court judges. It reads as under : p

"I, AB., having been appointed Chief Justice (or a Judge) of the High Court at (or of) do swear in the name of God solemnly affirm that I will bear true faith and allt;giance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and G to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

Article 221 lays down the salary to be paid to High Court judges. The salary H

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A is specified in the Second Schedule at Item 10. Article 221(2) next provides that every judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may, from time to time, be determined by or under law made by Parliament and until so determined to such allowances and rights as are specified in the Second Schedule. The B proviso says that neither the allowances of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. It is clear from this provision that the judge's salary is protected by the Constitution and the allowances and pension and other benefits conferred on him by the High Court Judges (Conditions of Ser- vice) Act, 1954 are also protected by the proviso, in that, they cannot be C varied to his disadvantage after his appointment. By virtue of Article 202(3) (d) the expenditure in respect of the salaries and allowances of judges of the High Court is charged on the Consolidated_Fund of each State. Then come to Article 222(1) which reads as under:

"222. Transfer of a Judge from one High Court to another.----(1) D The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court."

Sub-clause (2) of that Article provides for payment of compensatory E allowance to a transferred Judge. Thus the power to transfer a judge from one High Court to any other High Court is conferred on the President which he must exercise only after consultation with the Chief Justice of India. There is no dispute that the consultation must be effective, mean- ingful and purposive. Article 224 provides for the appointment of addition- F al and acting judges and Article 224-A permits appointment of retired judges. The power to appoint additional and acting judges is conferred on the President. However, the power to requisition the services of retired judges has to be exercised by the Chief Justice of the High Court with the 'previous consent' of the President. Under Article 229 the power of ap- pointment of officers and servants of a High Court is vested in the Chief G Justice of the Court or such other judge or officer of the Court as he may direct. It will be seen from these provisions in the Constitution that the power of appointment is vested in the President and has to be exercised in the manner set out in the various provisions adverted to hereinbefore. Throughout, the entire scheme is that the power is to be exercised by the H President or where the power is conferred on the Chief Justice, he has to

ADVOCATES ASSN. v. U.0.I. [AHMADI,J.] 905

exercised it with the President's consent. The scheme of this chapter A reveals that under Article 217(1) the appointment to be made by the ., President must be after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a judge, the Chief Justice of the High Court. But if any question arises as to the age of a judge of the High Court, the President is empowered to decide it after consult- B ation with the Chief Justice of India. Here there is no requirement to consult the Governor of the State or the Chief Justice of the High Court. When it comes to appointment of additional or acting judges, Article 224 empowers the President to make the appointment without the requirement of consultation. But appointment of retired judges can be made under Article 224-A by the Chief Justice of the High Court with the consent of the President. So both the expressions 'consultation' and 'consent' are used in this chapter.

We may now notice the provision concerning the Union Judiciary. Article 124(!) provides that there shall be a Supreme Court consisting of _,' a Chief Justice of India and, until Parliament by law prescribes a larger number of not more than twenty-five other judges. Article 124(2) which is relevant for our purpose may be reproduced at this stage :

"124(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judge of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years :

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

The second proviso to that clause says that a judge may resign his office or be removed from his office in the manner provided in clauses 4. Clause 2A was inserted by the Constitution 15th Amendment to provide that the age of a judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. Clause 3 of Article 124 sets out the qualifications for appointment as a judge of the Supreme Court. Besides being a citizen of India he must have been at least 5 years a judge of the High Court or of two or more such courts in succession or H

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

A for at least 10 years an Advocate of a High Court or of two or more such courts in succession or is in the opinion of the President a distinguished jurist. Article 124(4) provides that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the B total membership of that House and by a majority of not less than 2/3rd members of that House present voting on the ground of proved mis- behaviour or incapacity. Every person appointed a judge of the Supreme Court is required to make and subscribe before the President or his appointee an oath or affirmation according to Form IV in the Third Schedule which reads as under : c "I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor- General of India) do Swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, D that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

E No person who has held the office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India, see clause (7) of Article 124. Just as in the case of High Court judges, so also in the case Supreme Court judges the salaries, allowances, pensions, etc., are protected and charged on the Consolidated Fund of India (Article F 112(3)(d)). No discussion can take place in regard to his conduct in the discharge of his duties in any state legislature (Article 211) or Parliament (Article 121), except on a motion for his removal under Article 124(4). Articles 127 and 128 provide for appointment of adhoc judges and atten- dance of retired judges with the 'previous consent' of the President. Article 146 provides that the appointments of officers and servants of the Supreme G Court shall be made by the Chief Justice of India or such other judge of officer of the court as he may direct. It will thus be seen that even under this chapter the power of the President to make an appointment is cir- cumscribed or limited by the requirement of prior consultation. The power conferred on the Chief Justice of India by Articles 127 and 128 is cir- H cumscribed by the requirement of previous consent of the President.

ADVOCATES ASSN. v. U.O.l. [AHMADI,J.] 907

The anxiety of our Constitution makers to ensure that justice promised in the Preamble of the Constitution is pure and is not any manner polluted by executive or political interference is writ large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respec- tively, manifesting the confidence of the people in the courts' ability to do justice. By Article 50 a direction is given to take steps to separate the judiciary from the executive in the public services of the State. Th.e offices of the Attorney General and Advocates General have been given constitu- tional status with a view to making quality legal advice available to the Union and the States so that they function consistently with the rule of law and safeguard public interest. The role of the Public Prosecutor and the Government Pleader is also to act with fairness to ensure that justice is delivered according to law. Then recruitment to the judiciary at the level below the district judges is either through the independent agency of the State Public Service Commission or through an entrance test organised by the High Court. Insofar as appointments at the level of district judges is concerned, we have noticed that under Article 233 the Governor has to make the appointment. Article 233 is in two parts, the first part provides for appointment of a person in the service of the Union or the State to be made by the Governor in co11$ultation with the High Court and the second part provides for the appointment of an advocate or pleader or seven years standing on the recommendation of the High Court. The Governor's power of appointment is conditioned by the obligation to consult the High Court and such consultation must be meaningful and purposive and cannot be reduced to an empty formality. Consultation cannot be complete, purposive and effective unless the High Court which is best suited to adjudge the merits and suitability of the candidate is consulted and its view obtained before the appointment is made. See Chandremouleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR 666. Once the appointment is made by the Governor after consultation with the High Court or on its recommen- dation and the appointee enters the cadre of district judges he falls within the High Court's control under Article 235 of the Constitution. His inde- pendence is then secure because it is settled law that the High Court's control under Article 235 extends to transfer as well as disciplinary matters. See State of West Bengal v. Nripendra Nath, [1966] 1 SCR 771 and State of Assam v. Ranga Mahammad & Ors., [1967] 1 SCR 454. It is only in case of H

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A dismissal or removal or reduction in rank to a lower cadre that the High Court has to seek the Governor's order, he being appointing authority, but it is settled Iaw that ordinarily he must act on the recommendation of the High Court.

So far as appointment to the High Court is concerned Article 217(1) B extracted earlier clearly obliges the President to make the appointment only 'after' he has consulted the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. The article does not provide any hierarchy amongst the three consultees although according to the procedure the proposal ordinarily emanates from the Chief Justice of the C State and thereafter goes to the executive. It is only after the Governor has cleared it that the Chief Justice of India is consulted. Therefore, before the Chief Justice of India opines on the proposal he has an opportunity to sieve the material on the file and to appreciate the view point of the other consultees. The situation that may arise can be fourfold, namely, D (i) all the three consultees agree on the proposal;

(ii) the Chief Justice of the High Court and the Governor do not agree and the Chief Justice of India agrees with the former;

E (iii) the Chief Justice of the High Court and the Governor do not agree and the Chief Justice of India agrees with the latter; and,

(iv) the Chief Justice of the High Court and the Governor agree but the Chief Justice of India does not agree.

F In the first situation is the President agrees there can be no problem whatsoever but how should the President react in the other three situa- tions? Is he bound to accept the opinion of the Chief Justice of India in all the three situation? Is that what is meant when primacy is sought to be accorded to the views of the Chief Justice of India?

G Let us now move on to Article 124(2) which provides for the appoint- ment of a Supreme Court Judge. We have extracted the article earlier. It empowers the President to appoint a judge to the Supreme Court 'after' consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose. The zone of consultation is very wide, he may consult one or more of the Supreme

ADVOCATES ASSN. v. U.0.!.1-\HMADI, J.] 909

Court judges and any number of the numerous High Court judges in the country. The proviso then says that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India 'shall always be consulted'. There was some argument on the question whether consultation with anyone or more of the consultees specified therein is a 'must' and the word 'may' grants an option only in regard to the choice from amongst the consultees or whether the said clause is optional in its entirety. But there was no controversy that the proviso mandates consultation with the Chief Justice of India. We will deal with this question at the appropriate time when we examine the content of clause (2) of Article 124 of the Constitu- tion but at this stage it would suffice to point out that according to Bhagwati, J in S.P. Gupta's case at page 547 the practice has throughout c been of consulting the Chief Justice of India alone. That practice may be on the presumption that consultation with the Chief Justice of India satisfies the requirement of clause (2) as well as the proviso thereto. Be that as it may, the possible situation~ which can emerge are : D (i) the President consults the Chief Justice of India alone;

(ii) the President consults the Chief Justice of India an one or two or more judges of the Supreme Court and their views do not tally;

(iii) the President consults the Chief Justice of India and three Chief E Justices of the States and their views do not tally; and,

(iv) the President consults the Chief Justice of India and one or more consultees, and all of them have identical views. F If the President agrees with situations (i) and (iv) then there is no difficulty but what is the President does not agree with those views? Even then is he bound by the views of the Chief Justice of India? But how should he react in situations (ii) and (iii)? Is he bound by the views of the Chief Justice of India? Is that what is understood by the primacy principle? If the view of the Chief Justice of India is treated as binding will it render the provision G in regard to consultation in clause (2) of Article 124 nugatory' Again, if the view is taken as binding on the primacy doctrine, will not the President be forced to abide by that advice even if it runs counter to the views of others consulted under clause (2)? If such a situation arises will or will not the President have the option to go by the advice of other consultees if he H

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A finds it more sound and acceptable? It will thus be seen that the question of according primacy to the views of the Chief Justice of India throws up many situations which must be kept in view while interpreting the Constitu- tion.