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

be necessary to be repeated in the Government of India Act, 1935, A whereunder Provincial High Courts were set up, each consisting of a Chief Justice and other Puisne Judges. The understanding of the status, rank and precedence of the Chief Justice of a High Court was so entrenched and well received that its reaffirmance was found not necessary and the same hue has continued ever since, Likewise on such understanding the Federal B Court under Section 200 was set up to consist of a Chief Justice of India and a number of other Judges. The Preamble of the Act of 1919 however being an article of faith and policy remained un-repealed and found itself preserved in the proviso to Section 321 of the 1935 Act, on repeal of the 1919 Act: A long road from that point of time led to the independence of India and to the framing and adoption of its Constitution. Thereunder we have a 'Chief Justice of India' as an essential constituent of the Supreme Court under Article 124(1) of the Constitution. In plain words he is an institution by himself. Besides he is also a component of the judicial institution known as the Supreme Court of India. Under Sub-Article (2) of Article 124, as also under Article 217, the Chief Justice of India has been assigned a compulsive consultative role in the matter of appointment of Judges of the Supreme Court as also the Chief Justices and Judges of the High Courts. While framing the Constitution, in a memorandum repre- senting the views of the Federal. Court and the Chief Justices representing all the Provincial High Courts of the Union of India, held in March 1948, received and reproduced in B. Shiva Rao's "FRAMING OF INDIAS E CONSTITUTION" Vol. 4 at page 194, thanks were offered to the system of administration of justice established by the British in the country and it .. was noticed that the judiciary until then had, in the main, played an important role in protecting rights of individual citizens against encroach- ment and invasion by the executive power. But fear was expressed therein F that the status and dignity of the judiciary so achieved had become prone to attempts to whittle down its power, rights and authority. The in-built retention of rank and precedence of the Chief Justice in the institutional sense before the other Judges of the same court, be it a High Court of the state or the Supreme Court of India in the post-Constitution period, is an ·' accepted herachial norm and hence the source of his Institutional primacy. G

Interestingly the word 'rank' in common parlance, as also in English diction refers to a position, especially an official one, within a social organisation, of high social order or other standing status. Likewise the word "precedence" denotes the ceremonial order or priority to be observed H

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A on formal occasions, or a right to preferential treatment. In the same strain the word "primacy" denotes the state of being first in rank or being in formal state i.e. the most important state. Thus it would be seen that not only is the word "primacy" inextricably linked up with the words "rank" and "precedence" but conceptually they all are of the same family and breed, block and substance. The Chief Justice of india or the Chief Justice of a High Court, as the case may be, is known to be primus inter-pares i.e. first among equals while functioning judicially, but in matters other than judicial enjoys a unique position of status, rank and precedence by virtue of his office. This distinction is first borne in. mind and then constitutionally kept alive, whenever he is referred to singularly in the Constitution in contrast to the word 'court' wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element.

Legislative history further tells us that prior to the Constitution and during the British Rule, no law warranted the Executive to consult the D Chief Justice of the Federal Court and/or that of the High Court for appointment of Judges in the aforesaid courts. In the Memorandum of the Federal Court and the High Court Chief Justices of March, 1948, above referred to, while suggesting that every Judge of the High Court be appointed by the President on recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India, view was expressed that it was not necessary to make any provision in the Constitution to cover the possibility of the Chief Justice of India refusing to concur with an appoint- ment proposed by the President, as both were officers of the highest responsibility, and by then, no such case of such refusal had arisen, although a convention existed that such appointment shall be made after referring the matter. to the Chief Justice of India in obtaining his concur- rence. It was also suggested that if per chance such a situation were ever to arise it could of course be met by the President making a different proposal and no express provision need be made in that behalf. The suggestion further was that what had been said for the High Court applied mutatis mutandis to the appointment of Judges of the Supreme Court. The Body of Judges further suggested that it was not appreciated why a constitutional obligation be cast on the President to consult any Judge or Judges of the Supreme Court or of the High Court in the States before appointing a Judge of the Supreme Court, there being nothing to prevent the President from consulting them whenever he deemed necessary to do

ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.] 991

so. The Constituent Assembly, fully alive to the suggestions of the Body of higher Judges of the country, went on to build a positive bridge providing a compulsive participatory role to the highest judicial functionary, the Chief Justice of India in recognition of his status and rank, when required to be consulted by the President, before making appointments in terms of Ar- ticles 124 or 217 of the Constitution, rather than leaving the appointments to the Executive alone. Dr. B.R. Ambedkar's remarks as quoted by my learned brother Pandian, J. in his opinion are picked up by me to be reproduced :

"It seems to me, in the circumstance in which we live today, where the sense of responsibility has not grown in the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly it seems to me that to make every appointment which executive wishes to make subject to the con- currence of legislature is also not a very suitable provision." D Then again while replying to the demand of concurrence by the Chief Justice of Ic.dia in the matter of appointments to the higher judiciary as raised by some members of the Constituent Assembly, Dr. B.R. Ambedkar in his winding up debate on the topic said as follows : E "With regard to the question of concurrence of the Chief Justice , it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the C~ef Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person but after all, the Chief Justice is F a man with all the failings, all the sentiments, and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appointment of ~udges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I G there/ore think that this is also a dangerous proposition (emphasis now supplied)

At this juncture, priorly, the wording of the preamble of the Govern- ment of India Act 1919 be recalled as to the concept of "sense of respon- sibility". According to Dr. Ambedkar sense of responsibility had not grown H

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A to the extent needed, so as to trust the Executive to be making judicial appointments, as was its predecessor's role under the Crown. He rather termed it dangerous to leave the appointments to be made by the President merely on the advice of the Executive without any kind of reservation or limitation. Perhaps it was thought at that time that the President has some discretion vested in him to turn down an Executive proposal, since Article 74, in the present form, whereunder the advice of Council of Ministers is binding on the President, was not there. Then with regard_ to the par- ticipatory role of the Chief Justice, he viewed that "concurrence" meant veto upon appointment, which sequally meant making the Chief Justice the appointing authority, which absolute power the Constituent Assembly was not prepared even to vest in the President or the Government of the day. The clear understanding thus was that even the President or the Govern- ment of the day too, separating for the moment the ministerial act of making the appointment under the hand and seal of the President, was not being given the absolute power to stall an appointment in disregard of the recommendation of the consultee Chief Justice of India by becoming itself a consuree and assuming to itself the power of veto and becoming sequally the effectual Appointing Authority. Suspicion in the Constituent Assembly was thus cast on both the exclusive roles of the participants and hence the concept of plurality was introduced in the exercise at that level and at that level alone. E This, as is apparent, resulted in Articles 124 and 217 in the form as they are. Though out of the competing words 'consultation' and 'concurrence', consultation held the field, being conciliatory and courteous word, but it was viewed that the Chief Justice of India could not be allowed F to have a veto power upon the appointment of Judges when a requisite proposal was made by the President. Likewise, the emphasised words in Dr. Ambedkar's statement, which have failed to get due attention hither- tofore, suggest the contemporaneous thinking of the time that an identical power of veto was also not vested in the President or the Government of the day. The first extraction is supportive of the view that it was felt { G dangerous to leave the appointments to be made by the President without any kind of reservation or limitation, that is to say, merely on the advice of the Executive of the day. This was apparently in the keeping of Article 74 as it then was. The advice of the Council of Ministers is now binding. It means that in so far as the President is concerned the subject of appoint- H ment of Judges of the higher lot is left between the Chief Justice of India

ADVOCATES ASSN. v. U.O.I. [PUNCHHI, J.] 993

and the Prime Minister (Law Minister including) and he would go by the advice given. Thus it is at the Prime Minister's level that the search of the primacy of the Chief Justice needs to be directed; more so when literally the duty to obtain consultation has in judicial channels been viewed to be hardly an effective check, limitation or reservation on the power of the consultor, ordinarily. The alternate proposal to have an appointment proposed by the executive and concurred to by the legislature was also negatived, because the check in the exercise of such power was filling on an other high constitutional dignitary i.e. the Chief Justice of India.

.•> We need not feel uneasy to put up with the Constitution as it exists . Ours is a constitution, perhaps the longest in the world, a document written profusely. There is no miserliness employed in the use of words. As an organic whole it has a live model to imagine about; the Westminster model. All problems facing the nation, soluble with the aid of law, must find answers through the language and framework of the Constitution. All new thoughts and solutions to new problems experienced, not envisaged by the D Founding Fathers, must translate themselves through the words of the < + Constitution. Greatest problems of the time are also not solved merely by interpretations made to suit the occasions. There are other legitimate modes available in passing through the tunnel of words employed by the Constitution. Majorities to byepass the words also not the answer. For the problem in hand look to the facts and figures given by the Government of E India, where the opinion of the Chief Justice of India was overruled by making appointments of persons disapproved or not recommended by him. The affidavit of Mr. S.K. Bose dated April 2 1993 States that out of a total of 547 appointments made in the last decade, 540 were in accordance with the opinion of the Chief Justice of India and the remaining seven were not in such accord. We have not been provided with the details as to which court they related to except that out of those seven questionable appoint- ment five were made in 1983, one in 1985 and one in 1991. This is the fall out of S.P. Gupta's case. It is left to guess if those were related to the High Courts, and were they, made, at least, in accordance with the opinion of the Chief Justice of the respective High Courts. In any case the affidavit does not state that those appointments were made even against the opinion of the Chief Justice of the High Court besides that of the Chief Justice of India. Otherwise, but for these aberrations, for which the Executive has given out to make amends in various forums, the executive has conceded primacy to the opinion of the Chief Justice of India which is reflective from H

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A the factum of 540 appointments going through with his concurrence. Thus from the contemporaneous views of the time when the Constitution was adopted and from its actual working in the years thereafter, the positions which emerges is that the consultee has remained an effective consultee and no one out of the two has the primal power to silence the other. The B two high effectual constitutional dignitaries, such as the Prime Minister of India aided by the Law Minister, if any, and the Chief Justice of India are expected to interact in a spirit of mutuality and accommodation, and not act at cross purposes. The speech of Dr. Rajendra Prasad as President of the Constituent Assembly when moving for adoption of the Constitution of India, which stands extracted in detail in the majority opinion is worth reproduction here in part :

"We have prepared a democratic Constitution but successful work- ing of democratic institutions requires in those who have to work them willingness to respect the view-points of others, capacity for compromise and accommodation. Many things which cannot be written in the Constitution are done by convention. Let me hope that we shall show those capacities and develop those conventions." .... - This is reflective of the need of the hour. It is by retentivity and practice of such thought that we sustain independence of judiciary ; the democratic way of life, and working of the Constitution in mutuality of concern and respect. It is this idealism which promotes the Rule of law whose workability rests on the cushion of checks and balances. One-up- manship is totally out of tune with the working of our Constitution. Does not civilisation in its march keep searching all the time men who can deliver the goods? Towards that and have not the people of India through the Constitution placed faith in the aforesaid constitutional functionaries enjoining on them, the duty to search and put to use, from amongst them, persons who can deliver the goods, to man the higher echelons of judiciary? That trust has to be discharged by both as a sacred duty without a sense of superiority to either of them. In a parliamentary set up, such as ours, the elected government headed by the Prime Minister is a government of the people. The judiciary too is appointed, though indirectly, by th people, through the joint effort of the constitutional functionaries. The prople's expectations of them can appropriately be depicted from a matrimonial court scene where the child of warring spouses when asked to whom he would prefer to live with expressed his fond desire of living with both of

ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.) 995

them. The child for its well-being needs both the parents. The plurality thus lies in working together, minimising the areas of conflict ironing out differences, chosing the appropriate time for interaction, shelving con- troversial proposals and not letting thelll block other appointments which can by mutual discussion go through to serve the people; the aim being that the Supreme Court and the High Courts shall not remain starved of B Judges.

Thus S.P. Gupta's case, as I view it, in so far as it goes to permit the Executive trudging the express views of disapproval or non. recommenda- tion made by the Chief Justice of India, and for that matter when appoint- ing a High Court Judge the views of the Chief Justice of the High Court, C is an act of impermissible deprival, violating the spirit of the Constitution, which cannot he approved, as it gives an unjust and unwarranted additional power to the Executive, not originally conceived of. Resting of such power with the Executive would be wholly inappropriate and in the nature of arbitrary power. The constitutional provisions conceives, as it does, plurality and mutuality, but only amongst the constitutional functionaries and not at all in the extra-constitutional ones in replacement of the legitimate ones. The two functionaries can be likened to the children of the cradle, intimately conn~cted to their common mother -the Constitution. They recognise each other through that connection. There is thus more an obligation towards the tree which bore the fruit rather than to the fruit directly. Watering the fruit alone is pointless ignoring the roots of the tree. The view that the two functionaries must keep distances from each other is counter productive. The relationship between the two needs to be maintained with more consideration. F Now let us view the relationship of the Chief Justice of India which his puisne Judges. The Union Judiciary i.e. the Supreme Court oflndia · under Article 124 consists of a Chief Justice of India' and other Judges in terms thereof. The language employed is plain and unambiguous, distin- guishing him from other judges of the court. The Chief Justice of India vis-a-vis other Judges of the Supreme Court has a unique position, primal G in rank and status. He is not only paid more than the other Judges of the Supreme Court, but hold, unlike them, the responsibility of fixing roster, knitting benches, allocation of work etc. and of doing other administrative functions. Article 146 is also a clear pointer of his administrative role. Thus he stands apart by virtue of his office. There can be no two opinions on H

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A that score either in the context or in the spirit of Article 124. In comparison the matter of appointment of Judges of the Supreme Court is his constitu- tional function. The Chief Justice of India on the plain language of Article 124(2) is always singularly to be consulted by the President of India before making an appointment, whereas, in contrast, his puisne judges are B separately referred to be barely falling in the consultation zone and that too at the option of the President. Obtaining of their opinion is not compulsory. The option resting with the President is of course purely discretionary. The President may overloo~ all the Judges of the Supreme Court and all the Judges of the High Court and consult instead a High Court Judge junior most in rank from a remote corner of the country. The C only limitation set for the purpose is that consultation by the President can only be sought from within the members of the higher judiciary so ear- marked. This too demonstrates in contrast the singular position of the Chief Justice of India. The Chief Justice of India is one of the Judges in Supreme Court in the judicial sense. But he is the Chief Justice of India D through out the territory of India which encompasses various High Courts and other courts in the hierarchy. No functioning High Court Judge, and others to be appointed later, could have and can escape the touch of his approving wand. In every High Court appointment he has an effective role to play. High Court appointments advisedly are not left to be just a local affair. The Constitution thus has put the Chief Justice of India at a primal E position of certification in letting enter by his approval persons to the judicial family of which he is the pater familias. Correspondingly to that right is his duty to oversee performance of Judges in the High Courts as otherwise the power in his hand towards transfer of judges from one High Court to another under Article 222 could meaningfully be not employed. F In that sense the Chief Justice of India is administratively knit to the judiciary in the country but this knitting is primarily his and not that of the Supreme Court.

The majority opinion, as I have been able to discern and gather, concludes to obliterate this distinction. It follows a path leading to a G destination unknown to the Constitution. It is said that Rule of Law is a basic feature of the Constitution permeating the whole constitutional fabric. I agree. Independence of the judiciary is an essential attribute of Rule of Law, and is part of the basic structure of the Constitution. To this I also agree. The law whatever be its length or sweep, has some end, wherefrom if human discretion holds the field then that would lead either

ADVOCATES ASSN. v. U.0.1. (PUNCHHI, J.] 997

to justice or injustice, reasonableness or arbitrariness. Now this skepticism, with respect, I do not share in all situations; lest of all in the case of discretion vested in the Chief Justice of India. His is a unique position of trust reposed in him by the People of India through the Constitution. Entertainment of doubt in this regard is totally impermissible besides being unfounded. Then it is ·derived that the scope of human discretion (his discretion) should therefore be reduced or wiped out by laying down some guidelines so as to put those guidelines in the realm of law so that they become enforceable as Jaw. As a result the discretion vesting in one individual (the Chief Justice of India) on the suspicion of its being un- reasonable and arbitrary need bi:: snatched and handed over fictionally to the country's judiciary of the higher echelons as a body but actually to body of men introducing a new element of plurality in the final decision under the going name of "collective wisdom". In support of this step it is viewed that since the constitutional scheme frowns on vesting of absolute power in one individual, the Chief Justice of india cannot be left to have a singular role to play under Article 124(2) of the Constitution and reference to him in the said Article be read symbolic of his representing the judiciary as a whole. It is also suggested that in actual practice he must be one in a body of men, i.e. he with two of his colleagues in order of seniority, and collectively as an oligarchy, recommending appointment of judges to the Supreme Court, and. likewise in a body of more than those two, in the matter of appointment of Chief Justices and other Judges of the High E Court. This is the barter which the Chief Justice of India must accept to get back from the Executive his Jost primacy. He must forever muzzle his singular voice. The individual voice of the Chief Justice of India shall just be at par with the voices of the afore-referred to men composing that body. All such voice, termed as collective wisdom, in writing would be sent to the Central Government recommending appointment of judges to the higher judiciary. By this collectivity, concievably not always unanimous, assumption is made that it could have the loudest voice reverberating. And such voice would ha~e "greater weight" as compared to other constitutional functionaries who would have "due weight". Further the Executive, time bound, would be required to react an on its failure to do so effectively, it would be obligatory on its part to advise the president on the action proposed by this oligargic group. Lastly it is suggested that since appoint- ments routed through its method would assumptively be with the approval of the judiciary as a class, there shall then be no occasion or scope of H

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A judicial review over any appointment except to the limited extent of lack of qualifications of the appointee. And it is by this method, it is said, that the right people would be inducted in the judiciary. Nothing, in my view, could be more violating in letter and spirit of the language and scheme of the Constitution, disturbing equilibrium on which it rests, and hard hit on it basic structure and basic features especially in the denial of judicial review. And on such interpretation the President henceforth cannot solicit consultation with any Judge in the country under Article 124(2) of the Constitution, for the voice of all Judges now is to be found in the symbol- ized Chief Justice. I respectfully therefore disagree \vith the majority opinion. I foresee a storm of conflict brewing in its application. If by this method it is thought to prevent the Executive element likely to enter, encroach or trespass into the judicial portals, then that by itself would not cleanse the quality of judiciary. What is needed is to prevent executive minded persons to get in as Judges. The judiciary need to be saved from men of a pre-dominant executive temperament, men who brew conflict, men who relish and thrive on confrontation, men who would compromise principles to gain their point, men who are not historians of the past and prophets of the future, but believe in short term existences. To quote a Lord Chancellor of England, gentlemen are required in the judiciary and some knowledge of law is an advantage. And gentlemen are found on both sides of the fence. No side can lay claim to gentlemen as their exclusive possession.

A centuries old Baconian example given to describe the plight of a litigant coming to a court of law comes to my mind. It was described that when the sheep ran for shelter to the bush to save itself from rain and hail, p it found itself deprived of its fleece when coming out. Same fate for the institution of the Chief Justice of India. Here it results simply and purely in change of dominance. In the post S.P. Gupta's period, the Central Government i.e. the Law Minister and the Prime Minister were fouud to be in a dominant position and could even appoint a Judge in the higher { G judiciary despite his being disapproved or not recommended by the Chief Justice of India and likewise by the Chief Justice of State High Court. Exception perhaps could be made only when the Chief Justice was not emphatic of his disapproval and was non-committed. His stance could in certain circumstance be then treated, as implied consent. These would of course be rare cases. Now in place of the aforesaid two executive heads come in dominant position, the first and the second puisne, even when

ADVOCATES ASSN. v. U.O.I. (PUNCHHI, J.] 999

disagreeing with the Chief Justice of India. A similar position would emerge when appointing a Chief Justice or a Judge of the High Court. Thus in my considered view the position of the institution of the Chief Justice being singular and unique in character under the Constitution is not capable of being disturbed. It escaped S.P. Gupta's case, though in a truncated form, and not to have become totally extinct, as is being done now. Correction was required in that regard in S.P. Gupta's case, but not effacement.

The suggestion that our judiciary is traditionally apolitical and it needs to secure a non-political combination on having a larger say in the appoinrment of members of the higher judiciary is perhaps overly stated. C In the experience of working of the Constitution and the judicial system it becomes manifest that what was traditionally a non-political field, when courts were deciding disputes between citizen X & citizen Y, there grew additions of conflicts between the citizen and the State, enforcement of fundamental rights, redress of human rights violations, public interest litigation, enforcement of policy matters and the like.Any topic under the sky, subject to inherent limitations, is open for judicial review in the higher judiciary. Not only do we strike down in judicial review executive, ad- ministrative or quasi-judicial action and dismantle what appears to us to be offensive, still in numerous cases we have gone further to lay guidelines and done affirmative action. In doing so, have we not taken over political fields? Have we not in many an instance guided the functioning of a particular wing of the government and directed it to be run in a particular fashion and monitor its progress? Have we not sitting on the couch of Article 14 been telling the Executive what is right from our point of view, and had it done our way? Multiplication of example; would hardly be necessary to hammer the point. There is nothing to feel shy in stating that the traditional role of the court of remaining apolitical is a thought of the past. Political thinkers view even the Supreme Court of United States as a political institution. It is thought that the Court is a Policy Maker through interpretation. Its views have significance in policy making of the Govern- ment. Judicial activisms in various governmental fields, executive and legis- G lative, could overturn policies. This court's role is similar to that. Correspondingly there are protagenists for, the view for its avoidance by judicial restraint - again a policy. Lawrence Baum in "The Supreme Court" IVth edition at page 2 says :

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A "People often speak of courts as if they are, or at least ought to be, "non political". In a literal sense this is impossible ...... Popular though this view of the courts may be it is simply inaccurate. The Supreme Court is "political" in a variety of ways."

The higher judiciary in this country was never so full with political B problems as of today. Their solutions could never be entirely non-political.

Referring back to Article 124 and 217, in so far as the role of the Chief Justice of India is concerned, the plain language employed therein suggests that the proposal for an appointment must emanate from the C President of India. Conventionally it is just the reverse and for sound practical reasons. The proposal now emanates, and should keep emanating, from the Chief Justice of India, in so far as the Supreme Court appoint- ments are concerned, and from the Chief Justice of the High Court, in so far as the High Court appointments are concerned, to which the Chief D Justice of India is a very important consultee. To have developed such convention is pure and sound logic. The qualifications for appointment of Judges to the Supreme Court, as well as to the High Court, have in unmistakable terms been laid in the Constitution, and those being that one has either to be a Judge functioning ~n the High Court, or the District E Court, as the case may be, or a lawyer of a particular standing for both the courts, and a jurist for the Supreme Court. Search would obviously have to be made in areas to which judges and lawyers flock to or function, for they are the dominant contributories to the manning of the Bench Plainly that area is the courts where the High Court, controls or oversees the functioning where the faculties and talent of both Judges and Lawyers are F at their fullest display, functioning as they do not public gaze, facilitating to some extent a choice. Strong common sense leaves the act of proposing a name to the Chief Justice of the court concerned, he being the longest tenured and having gained the longest experience in men. Besides knowing about the legal acumen of the person under consideration, the Chief Justice G has opportunity to notice his behaviour and court-craft and the fairness with which he deals with the court, client and opposing counsel. The Chief Justice has various means to know about the general reputation of the person under consideration. Yet the search, as said before, traditionally is to look for a gentleman, a man of honesty and integrity for the discovery of which the Chief Justice may not be fully equipped. These attributes are

ADVOCATES ASSN. v. U.O.I. [PUNCHHI, J.] 1001

reflected to some extent in the formal atmosphere of the court but most of them outside the court. The proposal cannot, and should not, fructify on the mere asking of the Chief Justice because his recommendation in the very nature is incomplete and inchoate unless and untill the twain informa- tion about the character, honesty, integrity gentlemanliness, and a host of other attributes are supplied by the Executive. The Executive also is in a B position to supply the possible impact of the appointment as to whether it would receive acclaim and approval in the society or not. Thus it is evident that as the human being is not dissectible and is assessible as a whole, the qualities and attributes gatherable by the two functionaries should be pooled and churned as a whole so that the appointment surfaces in approval or disapproval of both of them. The information covering areas cannot be divided in water-tight compartments or by allocation of higher or smaller roles or award of less or more marks as do the Public Service Commissions. There are a lot many overlapping areas coverable by the Execulive as are areas in which difference of opinion may surface in assessment. Both need to entwine to help emerging appropriate acceptable appointments both to the Chief Justice of India and the Executive. In crystalising their views and conclusions, no window of information can be kept closed. They are entitled to draw and -solicit light from all genuine and permissible quarters since there is no bar to that effect under the Constitution. It is left exclusively to the Chief Justice of the Supreme Court E or the High Court, as the case may be, to consult any number of Judges on the particular proposal. It is equally within his right not to consult anyone. This is his constitutional primacy and prerogative. A division, artificial on the face of it, cannot tilt in favour of the Chief Justice by assigning to him more knowledgability of a proposed appointment than F other functionaries and on that basis a primacy, leaving the opinion of others for due regard. As said before, the whole personality of the person under considerations is to undergo the test of acceptability at a joint level. ) Knowledge of law alone is not a tilting factor.

A statement of Lord Diplock from Duport Steels Ltd. v. Sir & Ors., G has been quoted by my learned brother Ahmadi, J. In his opinion. That seems to be wholly apt in guiding what we are handling. There is clearly no principle of consideration which would justify reading into the plain and simple words of Article 124(2) any additional words to suggest that the H

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A Chief Justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a

B monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one de1mde him of the role to which he is constitutionally entitled. Equally it is difficult for me to agree to a construc- tion of the provision that the proposal initiated by him, or related to a c High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. I would rather go by the scriptural thought that when one says. and the other agrees, both be known as wise.

C With regard to the role of tl!te Chief Justice of India vis-a-vis the Chief Justice of the High Court in making appointments to the High Court, I would favour their views to coales1:;e because on that depends discipline in the judicial family. As said above, the appointments to the High Court are not a local affair or a State subject. At times local affairs may appear messed up and complicated which cannot be conducive to the emergence of right appointments. As said before, the Chief Justice of India has an over all role in the image and upkeep of the judiciary for he has a hand in the appointment of every High Court Judge and also a hand in the matter of transfers of Judges from one Hiigh Court to another. Those transfers need to have a basis. Unless he is obliged under the Constitutional scheme to oversee the functioning of the High Courts, he cannot purposively have a participatory role in the subject of transfers. In that limited hierarchical sense, the voice of the Chief Just'ice of India, in my view, to the proposal, should there be a difference, unexpected though, be the determining factor. F The views of the Chief Justice of the High Court regarding an appointment, being virginal and primary in nature, he being the initiator, would normally be entitled to great accommodation, but should there ever be a difference with the views of the Chief Jm.tice of India, the latter's view should be allowed to take the lead. For it cannot be ever said in the constitutional -( scheme that there are as many judiciaries in the country as of the High G Court; the Supreme Court being just another. As a wing of the political set up, the judiciary is one whole, knitted hierarchically under the Constitution in the manner suggested earlier and in the preceding paragraphs, and by allocation of specific roles.

H 'rransfers of Judges from one High Court to another is almost the

ADVOCATES ASSN. v. U.O.I. [PUNCHHl,J.] 1003

judiciary's internal affair. The role of the Chief Justice of India in that A regard is primal in nature because this being a topic within the judicial I family, the Executive cannot have an equal say in the matter. Here the word 'consultation' would shrink in a mini form. Should the Executive have in equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary. For instance take the case of a recommenda- B tion made by a Chief Justice of the High Court to which the Chief Justice of India is in dis-agreement, and the Executive preferring the view of the Chief Justice of the High Court makes the appointment and which Judge is recommended to be transferred by the Chief Justice of India to another High Court. In the first place, preferring the opinion of the Chief Justice C of the High Court over and above that to the Chief Justice of India erodes the primacy of the Chief Justice of India based on his status, rank and precedence constitutionally noticed, and in the second place, recommen- dation of transfer of that Judge to another High Court, makes the proposal suspect. This obviously is a breeding ground of indiscipline. So the role of the Chief Justice of India in the matter of appointment of Judges of the D High Court and their transferability are connected matters which cannot be divorced on the mere fact of the possibility of their separate happenillg. The role of the Chief Justice of India in this twin subject has to be viewed from the self angle, i.e. to subserve the independence of judiciary in the interest of the Indian people. E Thus on the question of primacy I conclude to say that the role of the Chief Justice of India in the matter of appointments to the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a- vis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the F wishes of the other. S.P. Gupta's case to that extent need be and is hereby explained away restoring the primacy of the Chief Justice. The roles of the Chief Justice of India and Chief Justice of the High Court in the matter of ~- appointments of Judges of the High Court, is relative. to this extent that should the Chief Justice of India be in disagreement with the proposal, the G Executive cannot prefer the views of the Chief Justice of the fligh Court in making the appointment over and above those of the Chief Justice of India. In the matters of transfers of Judges from one High Court to . another, the role of the Chief Justice of India is primal in nature and the H

1004 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Executive has a minimal, if not, no say in the matter, for consultation envisaged under Article 222 of the Constitution is used in a shrunk from and more as a courtesy, the subject being one relating to the in-working of the judiciary.

I am in dis-agreement, though regretfully but respectfully, with the t B views of the majority in virtually re-writing the Constitution to assign a role to the Chief Justice of India, in the whole conspectus of the Constitu- tion, as symbolic in character and to his being a mere ·spokesman repre- senting the supposed vies of entire judiciary. I also dis-agree, likewise, in the creation of and vesting of powers assumed, in the hands of the oligarcy representing the judiciary as a whole created by adding words to the Constitution by interpretative exercise so to silence the singular voice of the Chief Justice of India of ever. I also disagree to the denial of judicial review on the subject on the supposition that it would be the judiciary's act, as that is against the basic structure of the Constitution. Subject to the views afore-expressed, I am, by and large, in respectful agreement with the opinion of my learned brother Ahmadi, J. Necessarily and sequally, save to the views afore-expressed by me, I am in respectful dis-agreement with the view of my learned brethren Pandian and Kuldip Singh, JJ. since they are supportive of the majority view, save and except where their views accord with mine and that of brother Ahmadi, J.

Since neither before the referring bench nor in the pleading was any point raised as to the. innovation and application of service jurisprudence to the induction into the higher judiciary, or to the concept of reasonable expectations, I do not feel obliged to even touch these questions. It needs also to be added that nothing ever was projected before us on these r subjects as indicated. As stated in the outset we did not have the benefit of a discussion inter-se on which the desirability of going into these aspects may have been gone into. The majority has expressed views thereon without alerting counsel appearing and others concerned. A lot can be said against such views of the majority out for the present the comment be kept reserved. I would rather desist conviction on the subject and prefer to · remain advised. So, in my view, on this aspect, the opinion is obitor. Consideration on these points was wholly unnecessary on the rigid terms of the reference. For such view I am with respect in disagreement with the majority.

ADVOCATES ASSN. v. U.O.I. fPUNCHH!, J.) 1005

On the question of justiciability of the Judge-strength, I have nothing useful to add.

While parting with this op1mon, I join hands with my learned brethren in recording my sense of gratitude to the galaxy of men who addressed us at the bar in this venture, which could aptly be called a labour of love, and to have enlightened us on the subject with their professional· B skill, analysis and wisdom.

I agree to the disposal of the reference leaving however a note of skepticism - Was it worth it?

N.P.V. Matters disposed of. C