1D:\d data\cdrive\V.K. 2015\Note Judges matter June 18 2015.docxREPLY ON MERITS of Supreme Court on RecordAssociation to the Submissions MADE BY and ON BEHALF OF the UNION OF INDIAand by Supporting States

NOTE-IKEY QUESTION WHO HAS THE LAST WORD?

In this case on the merits THE CORE QUESTION IS WHETHER UNDER THE CONSTITUTION OF INDIA 1950, AND DURING ITS WORKING AFTER 26TH JANUARY, 1950 THE CENTRAL GOVERNMENT COULD APPOINT ANY QUALIFIED PERSON OF ITS CHOICE AS JUDGE OF THE SUPREME COURT/HIGH COURT CONTRARY TO AND IN DISREGARD OF THE ADVICE GIVEN BY THE CHIEF JUSTICE OF INDIA

NOTE:-This is because, on the merits the principal point is as to whether an essential feature of the Constitution - i.e. the independence of the judiciary - has been damaged or altered by the new scheme [footnoteRef:2] set up under the Constitution 99th Amendment Act (alongwith the NJAC Act); in other words whether or not the substituted new scheme for appointment of Judges in the Higher Judiciary has substantially changed by altering essential safeguards, characteristics and standards that had previously prevailed under the un-amended Article 124(2) and Article 217. [2: So-called in the affidavit dated May, 2015 filed on behalf of the Union of India in the SCORA Writ Petition. ]

I.The FUNDAMENTAL and SALIENT point raised by the learned Attorney General is:whether at the time of framing of the Constitution, and the working of its provisions thereafter, there was manifest in its provisions and its working the primacy of the judiciary.[footnoteRef:3] [3: AGs Note-II (E)(III) reads as follows:III. In any event the primacy of judiciary cannot be the basic feature of the Constitution because Judicial Independence without the primacy of judiciary in appointments was the express intention in the drafters of Constitution of the earlier working of Higher Judiciary (at page 55-56 of Note-II.]

It is submitted that there was:

- Amongst all the Articles in the Constitution which deal with appointments made by the President (with the aid and advice of his council of Ministers[footnoteRef:4]) the only two Articles which provide for appointments being made in consultation with other constitutional authorities are Article 124(2) and Article 217(1): having regard to the anxiety expressed in speeches consistently delivered by various Members in the Constituent Assembly over time (1947 to 1949) (see Note attached as Exhibit-I) this could only have been because of the abiding concern of the framers of the Constitution to uphold and maintain the Independence of the Judiciary. [4: Article 76(1), Article 80(3) (Nomination by the President), Article 95, Article 148(1), Article 155, Article 239, Article 316(1), Article 324(3), Article 331 (nomination by the President), Article 338(3), Article 338A(3), Article 340 and Article 350B.]

In two paragraphs at page-258 of the Debates in the Constituent Assembly (Vol.8 CAD). Dr. Ambedkar had deliberately used the word dangerous at two places (in the second last paragraph at page 258) as well in the last paragraph (also at page 258) viz.

First, that it would 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 the President receives from the Executive of the day (his Council of Ministers).

AND

That it would be equally dangerous to allow the Chief Justice of India almost a veto upon the appointment of Judges [which 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.e. his Council of Ministers].

This means that (according to Dr. Ambedkar)

it was dangerous to leave the appointments to be made by the President as solely with the with the President acting with the aid of his Council of Ministers (that is merely on the advice of the Executive of the day) and it was equally dangerous to require that appointments made by the President should be concurred in by the Chief Justice of India.

So what precisely did Dr. Ambedkar have in mind?

At this point of time, it is difficult to say precisely what Dr.Ambedkar intended to convey in his closing remarks before draft Article 103 was adopted by the Constituent Assembly.

However, for many years H.M. Seervai in his book Constitutional Law of India, 4th Edition, 1996, Vol.-3 had opined: (after carefully considering what Dr. Ambedkar had in mind) and concluded (i) that the principle recognized in the Constitution of India 1950 and in its working thereafter was that giving primacy to the opinion of the Chief Justice of India, (the highest judicial authority under the Constitution) was necessary because it was essentially a fetter on what otherwise would have been an absolute power of the Executive a power which the Drafting Committee and the Constituent Assembly wanted to avoid conferring on the Executive.

(ii) that all the elaborate provisions securing the independence of the judiciary would be of no avail, if a power were given to the executive Govts. to appoint a Judge of their choice, disregarding the advice of both the Chief Justices (i.e. CJI and CJ of the concerned High Court) consultation with whom was made obligatory because they are qualified to give advice as to legal ability, knowledge of the law, the judicial potential and the ability of the person to be appointed to work harmoniously with the members of the Bench and the Bar, and that the executive governments were not so qualified.

The same passages had been published even in the Third Edition Vol.-II (1984)The relevant passages in Seervai, 4th Edition Vol.-III (1996) are in paragraphs 25.350, 25.351, 25.352, 25.353, 35.354, 25.355, 25.356, 25.362, 25.363 and 25.364: these passages for ready reference are quoted below: (Emphasis is given to portions shown in BOLD)Section XI And Thou, too, Brutus!Section XIAnd Thou, too, Brutus!

Introductory25.350. In this section we must deal with the wound inflicted on judicial independence by the (First) majority in the Judges Case by putting judicial independence at the mercy of the executive. The result is all the more surprising because some of the Judges who constituted the majority rightly look upon judicial independence as a basic and fundamental feature of our Constitution; and their judgments show great anxiety to uphold judicial independence. As I have said earlier, although the Law Ministers Circular Letter of 18 March 1981 sparked off the controversy which culminated in the Judges Case, the short term extensions of Addl. Judges and the dropping of two Addl. Judges gave rise to questions which went to the root of judicial independence. The most important question so raised turned on the interpretation of Article 217(1) as to the initial appointment of High Court Judges. And it arose in this way. It will be recalled that Kumar J. (of the Delhi High Court) was dropped because the Union of India preferred the advice of Prakash Narain C.J. to the advice of the Chief Justice of India. For Judges like Gupta and Tulzapurkar JJ. who held that the test of suitability for the appointment of Judges provided in Article 217 did not apply to the reappointment of an Addl. Judge, (the question of the correct interpretation of Article 217 (in the First Judges case) in relation to an initial appointment of Judges did not arise. However, since that question had been argued and fully discussed, Gupta and Tulzapurkar JJ. dealt with that question. It appears to me that the most satisfactory way is to discuss the problems raised, and their solution, independently of the judgments in the first instance, and discuss the judgments thereafter. This course is followed because the reader can have a connected and coherent view of the problems and their solution as a whole, instead of having to piece it together from observations made in various judgments.

The Constituent Assembly and the appointment of Judges. The assembly steers a middle course between the U.K. and the U.S. models.25.351. A number of questions arose when draft Article 193 (present Article. 217) was passed in the Constituent Assembly. According to Dr. Ambedkar, there were two alternative modes of appointing Judges which were before the Drafting Committee. The first was the appointment of Judges in the United Kingdom where the executive had an absolute power to appoint all the Judges of the High Court of Justice, and Lords of Appeal in Ordinary in the House of Lords. In the United States, the President had power to appoint Federal Judges with the advice and consent of the Senate. This method curtailed the absolute power of the President as the Chief Executive to appoint Judges, by giving the Senate a veto. Between the absolute power of the executive in the United Kingdom, and the Presidents power in the United States, hedged in by the veto of a legislative body, the Drafting Committee steered a middle course. The United States example was not followed also because it would have involved the appointment of Judges being influenced by political pressure and political considerations. Dr. Ambedkar said:

Dr. Ambedkars explanation: neither the President nor the Chief Justice has absolute authority in the appointment of Judges.The draft Article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provisions may be regarded as sufficient for the moment.

With regard to the question of the 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 Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think to allow the Chief Justice practically a veto upon the appointment of judges 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 therefore, think that that is also a dangerous proposition.[footnoteRef:5] (Italics supplied) [5: C.A.D. Vol. 8 at p. 258.]

Amendment of Mr.Poker Sahib rejected25.352. Since the legislative history of Article 217 mentioned above became relevant, it may be observed that an Amendment was moved in the following terms by Mr. Pocker Sahib to draft Article 193(1):

That for Clause (1) of Article 193, the following be substituted:- (1) Every Judge of a High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court concerned after consultation with the Governor of the State concerned and with the concurrence of the Chief Justice of India and shall hold office until he attains the age of sixty-three years.[footnoteRef:6] [6: C.A.D. Vo,. 8 at p. 258.]

This amendment was rejected without any debate.

Neither the President nor the Chief Justice of India has absolute power to appoint a Judge.25.353. The legislative history, in so far as it dealt with alternative modes of appointment of Judges, shows that the absolute power of the Executive to appoint Judges in the United Kingdom was rejected, as also the limited power of the president of the United States hedged in by the veto of a political body the Senate. The framers of our Constitution decided not to give unfettered power to the President to make an appointment of Judges, nor did they give the Chief Justice of India absolute power to veto any appointment by requiring his concurrence to the appointment. Dr. Ambedkars statement, and the speeches which followed it, do not make a clear distinction between the functions of the Chief Justice of India and the Chief Justice of a High Court. At one place in his speech Dr. Ambedkar refers to more Chief Justices than one. But from a reading of the passage quoted above as a whole, and Mr. Pocker Sahibs amendment, it appears that by the word Chief Justice was meant the Chief Justice of India when Dr. Ambedkar said that the Drafting Committee were not prepared to give an absolute power to the Chief Justice to appoint a Judge, which absolute power had been denied to the President.

Dr. Ambedkars speech suggests that the Chief Justice of Indias advice must be preferredConstituent Assembly Debates: no discussion as to possible conflict between the two Chief Justices.25.354. It is obvious that the complicated problems which arose before the Sup. Ct. In the Judge Case were neither realised nor discussed in the Constituent Assembly. There was no discussion as to what would happen if the recommendation made by the Chief Justice of a High Court differed from the advice given by the Chief Justice of India. But the sentence to allow the Chief Justice practically a veto upon the appointment of Judges 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 would suggest that the advice of the Chief Justice of India would prevail over the advice of the Chief Justice of the High Court. This position taken by Dr. Ambedkar probably led to the rejection of the amendment moved by Mr. Pocker Sahib because under that amendment (which was proposed but never adopted) the recommendation was to be made by the Chief Justice of the High Court concerned; but the appointment was to be made with the concurrence of the Chief Justice of India which meant that the Chief Justice of India had the final say in the appointment of a High Court Judge.

The Presidents powers and the Governors powers are, in reality, the powers of the Government of India and the State Governments respectivelyThe Government of India and the State Govts. are the biggest single litigants in India and the States respectively25.355. A number of questions arose in connection with Article 217(1) some of which have been dealt with earlier[footnoteRef:7]. However, before considering those questions it is necessary to caution the reader against being misled by the words President and Governor who are described as the highest dignitaries in the Union of India and the States respectively. At times it is said that the power being conferred on the highest dignitaries in the Union and the States would be exercised fairly and any provision conferring such power must be so construed. However, it is necessary to distinguish between form and reality. In reality the powers of the President are exercised by the Government of India, and the power of the Governors are exercised by the Government of the States. Neither the President nor the Governors can sue or be sued for any act done or purporting to be done by them in the exercise and performance of the powers and duties of their respective offices. Therefore the public does not look upon the President and the Governors as the biggest litigants in the Union and the States respectively. However, there can be no doubt that the Government of India is the biggest single litigant in India; and the Government of the States are the biggest single litigants in the States. This is important, for the power is conferred not on high dignitaries but on the Union and the State Executive which, as litigants, are directly interested in appointing High Court Judges. The caution I have given against being misled by the showy parts of the Constitution must be borne in mind, because any interpretation of Article. 217 which puts judicial independence at the mercy of an Executive, which is the largest single litigant must be rejected if any other reasonable interpretation can be put on Article 217. [7: As for example, the convention of appointing the seniormost Judge as the Chief Justice of a High Court.]

25.356I have said that the question of the procedure to be followed for initial appointment of a High Court Judge arose in Justice Kumars case (of the Delhi High Court). This was because the majority in the Judges case (1981) held that although an Additional Judge had the right to be considered for further appointment in preference to other persons eligible for initial appointment as a Judge, the test of suitability prescribed by Art. 217 must be gone through over again (with certain limitations, not at present material). However, the majority of Judges in considering the position of the Chief Justice of India, of the State Govt., the Chief Justice of the High Court and the Govt. of India vis--vis one another, overlooked the fact to which they had drawn attention in other parts of their judgments, namely that no one has a right to initial appointment as a Judge. Kumar J., having a preferential right to be considered for further appointment could raise the question whether the safeguards provided against the abuse of power had been violated, namely, that there had not been full consultation between the Chief Justice of India, the Chief Justice of Delhi and the Govt. of India and that the order dropping him was passed mala fide or for a collateral purpose. Again for example, if Vohra J. (another additional Judge of Delhi High Court) had challenged the order dropping him, the fact that he was dropped because of his judgment in the Kissa Kursi Ka Case would have resulted in the order being struck down on the ground, inter alia, that an irrelevant consideration had been taken into account. However, the question of these two safeguards being violated cannot arise in the case of a person who has agreed to his name being submitted for initial appointment, because he has no right to initial appointment as a High Court Judge. (Pg. 2836-2837)

.....................................................................

The part which the State Governments and the Government of India have to play in the appointment of High Court Judges25.362What then was intended to be the function of the State Govt. and the Govt. of India in the process for appointing a Judge? We have seen that it was intended to eliminate legislative, political and executive pressure in the selection of Judges. As to the legal and other equipment of a member of the Bar or a member of the judicial service, which qualifies him to be a High Court Judge, the Chief Justice of the High Court is a competent judge, and the State and the Union Govts. are not competent judges. Up to a point, as we have seen, the character of a member of the Bar is known to the Chief Justice, or the other Judges of a High Court, from the appearances which he makes before them. However, the character of a member of the Bar outside the High Court may not be known to the Chief Justice and the other Judges, and may be known to the State Govt. For example, an Advocate may be dissolute in his private life; he may be a gambler on a large scale associated with persons of disreputable character in the gambling world; he may appear drunk in public places. There can be no doubt that a Judges personal life must be above reproach, and factors like those we have mentioned earlier, and other like factors, may become known to the Govt. of the State which may not be known to the Chief Justice or other Judges of the High Court. This is one of the reasons why the State Govt. has to be consulted, because its investigating department may have in its possession, or can obtain, materials relevant to the appointment of a Judge. Further, the Govt. has also to consider the expenses of maintaining the High Court; and this liability is relevant, though not decisive, as to the number of Judges to be appointed. The position of the Govt. of India is similar to that of the State Govt. because both Govts. have investigating agencies which are able to collect information relevant to the appointment of a Judge which may not be within the knowledge of the Chief Justice of the High Court or the Chief Justice of India. Reports about the political affiliations, namely, membership of a recognized political party to which the person belongs, will in almost all cases, be irrelevant. For, it is an established convention that on appointment as a Judge, he must sever his connections with the political party of which he is a member. This is not to say that in rare cases a person belonging to a political party pledged to subvert the lawful Govt. of our country by force may not be disqualified on that ground. (Pg.2842)

Submission: it is unfortunate that the Supreme Court did not lay down a procedure for appointing a High Court Judges. A suggested procedure which fulfils the two objectives of the framers of our Constitution.25.363. We have seen that Article. 217(1) laid down no procedure for appointment a Judge, and it is submitted that it is unfortunate that the Supreme Court did not lay down a procedure which would be consistent with the two objects which Article 217(1) was designed to secure, namely, to eliminate political, executive and legislative pressure and to secure the independence of the judiciary. It is submitted that the correct procedure to be followed is this: The proposal for the appointment of a member of the Bar or of the judicial service as a Judge should come from the Chief Justice of the High Court. He is aware of the needs of the High Court and in respect of a member of the Bar, about the way in which he is likely to shape as a Judge and work with the Bar and the other Judges of the Court. That recommendation should go, to the State Government. The State Government can place the materials before the Chief Justice in respect of the information in its possession which goes to show that apart from his legal competence and eminence, there are matters relating to his personal character or conduct which are inconsistent with his being appointed a Judge. The State Government cannot suggest an alternative name for two reasons. First, because it is not qualified to be the Judge of a persons qualification as a lawyer or as a Judge which fit him for appointment as a High Court Judge. Secondly, because to allow the State Governments to suggest the name of a judge is to defeat the intention of the framers of our Constitution, that political, executive and legislative pressure should not enter into the appointment of a Judge. When the State Governments objections are communicated to the Chief Justice, he would, no doubt, give serious attention to them. If his recommendation were made in ignorance of facts which, had he known them, would have prevented him from making the recommendation, it is reasonable to suppose that he will change his recommendation. But if the objections pointed out do not appear to the Chief Justice of the High Court to be sufficient, the Chief Justices recommendation, the objections raised by the State Government and the Chief Justices comments on those objections should be forwarded to the Government of India, who will then place them before the Chief Justice of India for his advice. The procedure suggested above has two characteristic features. First, that the State executive does not propose a name for appointment as a Judge for the two reasons mentioned above. The second feature is that in the first instance the suggestion does not come from the Chief Justice of India, because he is the highest judicial authority to be consulted on the recommendation made by the Chief Justice of the High Court and the comments of the State Government. In the first instance ordinarily, the Chief Justice of a High Court is better qualified to recommend a member of the Bar or a District Judge because he has a more direct contact with them. For the Chief Justice of India ordinarily to recommend a name is to embarrass the Chief Justice in the choice of a suitable judge who will work harmoniously in the High Court. It might also undermine his position and authority among his colleagues, among service Judges and among members of the Bar. The role of the Chief Justice of India is to scrutinise from his position as the head of the Indian Judiciary the recommendation of the Chief Justice of a High Court to see that local, sectarian and other irrelevant considerations have not influenced the choice of the person recommended as may happen sometimes. It is submitted that it is to the credit of the Attorney General, (Mr. L.N. Sinha) that he told the Bench in the Judges Case that speaking as the Attorney General of India, and not as Counsel for the Union of India, the scheme of the Constitution read against the background of the need to maintain judicial independence, was that the Chief Justice of the High Court should start the process of recommending a person for appointment as a Judge. The State Government was free to offer its comments but was not free to suggest an alternative name. Again, the scheme of our Constitution did not contemplate that in the first instance the Chief Justice of India should suggest the name of a person for appointment as a High Court Judge. (Pg.2842 to 2843)

Submission: the exceptional situation contemplated by Desai J. ought not to prevent laying down a proper procedure to be generally followed.25.364.It was suggested by D.A. Desai J. (on the Bench in the Judges case 1981) that the Chief Justice of a High Court cannot frustrate the appointment of a Judge by making no proposal himself; and the conclusion which he drew was that it should be open to any of the four designated authorities to suggest the name of a person for appointment as a High Court Judge[footnoteRef:8]. First, it must be assumed that the Chief Justice of a High Court, unless he is satisfied that the vacancy does not require to be filled, will discharge his duty. Consequently, the exceptional kind of case contemplated by D.A. Desai J. ought not to prevent a sound general procedure from being laid down. After all, except for the vacancies created by death, resignation or removal of a Judge, the date when a vacancy occurs is known on the very day on which a Judge is appointed. And if the Chief Justice of the State does not recommend a name for appointment as a Judge reasonably before the date of the vacancy; there is nothing to prevent the State Government., the Government of India or the Chief Justice of India to remind the Chief Justice of India of the High Court that it is his duty to recommend the name of the person to be appointed in the vacancy. In the unlikely event of the Chief Justice showing a determination to disrupt the appointment of a Judge, then, in that case, the Chief Justice having failed to avail himself of the opportunity to make a recommendation, the Chief Justice of India can propose a name, invite the comments of the Chief Justice of the High Court, and after considering those comments, give his advice. It is submitted that to allow any one of the four authorities to suggest the name of a person for appointment runs counter to all the provisions of the Constitution designed to secure the independence of the judiciary. It also runs counter to the intention of the framers of our Constitution in adopting a scheme which steered clear between the absolute power of the executive to appoint a Judge and the power of veto to the appointment of a Judge conferred on a legislative body, namely, the Senate of the United States. The principle of Sankalchands case is directly applicable even though the authorities to be consulted are four in number and not two. Although there is nothing in Art.222(1) to suggest that the rejection of the Chief Justices advice against the transfer of a High Court Judge would raise a rebuttable presumption that the order was passed male fide, nevertheless the Sup. Ct. held that the powers conferred on the Govt. of India were not unfettered or arbitrary. Consequently those powers must be fettered by giving a primacy to the advice of the Chief Justice of India over the views of the Govt. of India, by raising a rebuttable presumption that a transfer contrary to that advice will be treated as mala fide, or made from ulterior motives. [8: 1981 (Supp.) SCC 87 at para 772 page 639 = (1982) 2 S.C.R. 365 at p.1071]

The objections to any one of the four authorities suggesting the name of a person for appointment of a High Court Judge stated. The principle underlying the giving of primacy which does not amount to giving a veto, to the Chief Justice India stated.(Seervais Conclusion):The principle therefore is that giving primacy to the opinion of the Chief Justice of India, who is the highest judicial authority in India, over the Govt. of India is an essential fetter on what otherwise would be an absolute power, which the Drafting Committee and the Constituent Assembly did not want to confer on the Govt. of India as Dr.Ambedkar clearly explained in the statement set out in para 25.351 above. D.A. Desai J. and the three other Judges (i.e. Bhagwati J, Fazl Ali J and Venkataramiah J who took the same view as he did, (in the first Judges case 1981) held mistakenly, that to give primacy to the advice of the Chief Justice would, in substance, require his concurrence to the appointment of a High Court Judge, and the Drafting Committee expressly did not require such concurrence nor did the Constituent Assembly, for it rejected Mr.Pocker Sahibs amendment which required such concurrence. But, as I have explained fully in para 25.360 above, primacy conferred by raising a rebuttable presumption of the kind raised in Samsher Singhs Case and in Sankalchands case is one thing, and the conferment of a power to veto is a very different thing. Put shortly, if the Chief Justice of India had a veto on the appointment of a High Court Judge, any appointment made without his concurrence, or contrary to his advice, would be ipso facto void. Conferring primacy on the Chief Justice of India by providing that if his advice is disregarded, the Court will presume that on order passed against that advice has been passed mala fide, or with ulterior motives, does not make the order appointing a Judge ipso facto void, for the Govt. of India can rebut the presumption by establishing that on the facts of the case the advice of the Chief Justice of India was rightly rejected. It follows, therefore, that if the unanimous advice of the Chief Justice of the High Court and the Chief Justice of India were rejected by the Govt. of India, and an order passed appointing a Judge contrary to the advice of the two Chief Justices, a rebuttable presumption must arise that the order was passed mala fide or from ulterior motives. Such a presumption does not confer a veto on the two Chief Justices for the presumption can be rebutted. All the elaborate provisions securing the independence of the judiciary would be of no avail, if a power were given to the executive Govts. to appoint a Judge of their choice, disregarding the advice of both the Chief Justices, consultation with whom was made obligatory because they are qualified to give advice as the legal ability, knowledge of the law, the judicial potential and the ability of the person to be appointed to work harmoniously with the members of the Bench and the Bar, and the executive governments are not so qualified. This general proposition does not involve the conclusion that Judges are infallible. No doubt Judges are liable to err in a particular case. Therefore, if an error were pointed out in the advice of the Chief Justices, a Court would hold that the Govt. of India was justified on the facts of the case in disregarding that advice. But as stated earlier, it should not be for the Govt. to suggest a persons name for appointment as a High Court Judge and then appoint him in the exercise of its power under Art.217(1). (Pg.2843 to 2845).

Note:-The above views of Mr. H. M. Seervai have been around ever since 1984 when first expressed in the Third Edition (Vol. 2) and later in the Fourth Edition, Vol. 3 (1996) and there has been no other commentator expressing a contrary view.

Another standard text book viz. M.P. Jains Indian Constitutional Law Vol. I 6th Edition updated by Justice Ruma Pal (2013) (pages 530-534) has the following to say about judicial primacy

(B)(a) is quoted for complete reproduction of the text but it is irrelevant what is relevant is (B)(b)B. COMPOSITION OF THE HIGH COURT(a) STRENGTH OF A HIGH COURTA High Court consists of the Chief Justice and such other Judges as the President may appoint from time to time [Article 216]. In this way, the number of Judges in a High Court is flexible and it can be settled by the Central Executive from time to time keeping in view the amount of work before a High Court.Representation of People Act cannot be taken away by the Rules framed by the High Court in exercise of the power conferred by Article 225 such power relates to procedural matter and cannot make nor curtail any substantive law.[footnoteRef:9] [9: Raj Kumar Yadav v. Samir Kumar Mahaseth 2005 (3) SCC 601: 2005 (11) JT 177]

The question of justiciability of the adequacy of the Judge strength in a High Court has been considered by the Supreme Court in Supreme Court Advocates-on-Record Association v. Union of India[footnoteRef:10]. The Court has emphasized that it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog of cases and the expected future filing. This is essential to ensure speedy justice, Article 216 casts a duty on the Central Executive to periodically assess the Judge strength of each High Court. Article 216 is to be interpreted not in isolation, but as a part of the entire constitutional scheme conforming to the constitutional purpose and its ethos. [10: AIR 1994 SC 268: 1993 (4) SCC 441, see, infra, (d)]

Accordingly, the Court has ruled that fixation of Judge strength in a High Court is a justiciable matter. If it is shown that the existing strength is inadequate to provide speedy justice to the people in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation of providing speedy justice. In making the review of the Judge strength in a High Court, the President must attach great weight to the opinion of the Chief Justice of the High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with due despatch.[footnoteRef:11] [11: Ibid, at 441]

To reach this conclusion, the Court invoked Article 21, according to which speedy justice is now a constitutional requirement.[footnoteRef:12] On this point, the Court overruled the view expressed by it earlier in S.P. Gupta v. Union of India,[footnoteRef:13] that the question of the strength of Judges in a High Court was not justiciable. It is not for the Court to fix the number of judges itself; it can ask for a review to be undertaken of the Judge strength. Thereafter, on the question of fixation of the strength of the Judges of a High Court, the Supreme Court had observed in Subhash Sharma v. Union of India[footnoteRef:14]: For the availability of an appropriate atmosphere where a Judge would be free to act according to his conscience it is necessary, therefore, that he should not be overburdened with pressure of work which he finds it physically impossible to undertake. This necessarily suggests that the Judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Juge strength may be provided. [12: See, infra, Ch. XXVI, for discussion on Article 21.] [13: AIR 1982 SC 149: 1981 Supp SCC 87; see, infra, (c) ] [14: AIR 1991 SC 631, 646: 1981 Supp. (1) SCC 574]

The significance of the Supreme Court ruling in the Advocates-on-Record case can be appreciated in the context of the embarrassing situation that every High Court is faced withe load of pending cases. In its report in 1988, the Law Commission estimated that nearly 14 lac cases were pending in the various High Court.[footnoteRef:15] As on 30th September 2010 there were 42,17,903 cases pending in the High Courts.[footnoteRef:16] one of reasons for this situation is inadequate judicial strength in the High Courts. [15: LAW COMM. OF INDIA, ONE HUNDRED TWENTY FOURTH REPORT ON THE HIGH COURT ARREARS A FRESH LOOK, 2 (1988)] [16: Published by the Government of India on 2nd August 2011]

(b) APPOINTMENT OF JUDGESThe High Court Judges are appointed by the President after consulting the Chief Justice of India, the Governor of the State concerned.[footnoteRef:17] And, in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court to which the appointment is to be made [Article 217(1)]. [17: In case of a common High Court for two or more States, the Governors of all the States concerned are consulted; Article 231(2)]

As mentioned above, the constitutional provision [Article 217(1)] says that the President appoints these Judges after consulting the Chief Justice of India, the State Governor and the Chief Justice of the High Court concerned. The Central Executive and the State Executive provide the political input in the process of selection of the Judges.Since the inauguration of the Constitution, the question has been considered by some authorities how to ensure that the Judges are selected on non-political considerations? It is thought that it is necessary for securing the independence and objectivity of the Judiciary that Judges be selected on merit and not on political considerations. Such an objective can be achieved only if the role of the political element is reduced in the process of selection of the Judges of the High Courts.The matter was considered by the Law Commission as early as 1958. In its XIV Report, [footnoteRef:18] the Commission opined that the High Court Judges were not always appointed on merit because of the influence of the State Executive. Accordingly, the Commission suggested that the Chief Justice of the High Court should have a bigger role to play in the matter of appointment of the Judges; that it should be only on his recommendation that a Judge be appointed, and also that concurrence, and not only consultation, of the Chief Justice of India be needed for this purpose.[footnoteRef:19] [18: Supra.] [19: XIV Report, 71-75.]

The Government of India did not accept this recommendation. On the other hand, it stated that, as a matter of course, the High Court Judges had been appointed with the concurrence of the Chief Justice of India.[footnoteRef:20] [20: Rajya Sabha, November 24, 1959]

Again, the Study Team of the Administrative Reforms Commission on Centre-State Relationship endorsed the Law Commissions view that influence of the State Executive be reduced in appointing the High Court Judges. The Team suggested that the State Executive should have the right only of making comments on the names proposed by the High Courts Chief Justice but not to propose a nominee of its own. The Team hoped that this would reduce political influence exerted at the State level in appointing High Court Judge and improve professional competence.[footnoteRef:21] [21: Report, I, 181-88 (1967)]

However, the A.R. Commission did not endorse the suggestion made by its Study Team. The Commission took the view that the proposal would drastically reduce the role of the State Governments in the selection of the High Court Judges. In its view the existing procedure balanced the right of the Centre and of the States. It harmonized the initiative and autonomy of the State, on the one hand, and safeguards against the question of undue influence by the State, on the other.[footnoteRef:22] [22: Report on Centre-State Relationship, 40]

(c) S.P. GUPTA v. UNION OF INDIA

In 1982, the matter regarding appointment of the High Court Judges as well as of the Supreme Court Judges came before the Supreme Court by way of public interest litigation[footnoteRef:23] in the famous case of S.P. Gupta v. Union of India.[footnoteRef:24] [23: For public Interest Litigation, see, infra, this Chapter Sec.D(k) and Ch. XXXIII, Sec. B.] [24: AIR 1982 SC 149]

Several writ petitions were filed in the various High Courts under Article 226 by several lawyers practising in the various High Courts.[footnoteRef:25] All these petitions were transferred to the Supreme Court for disposal. The main question considered by the Court was of the several functionaries participating in the process of appointment of a High Court Judge whose opinion amongst the various participants should have primacy in the process of selection? [25: For discussion on Article 226, see, infra, Sec.D]

The majority[footnoteRef:26] took the view, in substance, that the opinions of the Chief Justice of India and the Chief Justice of the High Court were merely consultative and that the power of appointment resides solely and exclusively in the Central Government and that the Central Government could override the opinions given by the constitutional functionaries (viz. the Chief Justice of India and the Chief Justice of the concerned High Court). This meant that the view of the Chief Justice of India did not have primacy in the matter of appointment of the High Court Judges; that the primacy lay with the Central Government which could decide after consulting the various constitutional functionaries and that the Central Government was not bound to act in accordance with the opinions of all the constitutional functionaries consulted, even if their opinions be identical. [26: BHAGWATI, FAZAL ALI, DESAI AND VENKATARAMIAH, JJ. The Bench consisted of seven Judges]

The majority in Gupta thus gave a literal meaning to the word consultation in Articles 124(2)[footnoteRef:27] and 217(1) in relation to all consultees and final decision in the matter was left in the hands of the Central Executive.[footnoteRef:28] The majority thus took an extremely literal and positivistic view of Article 217(1). In reality, this view made consultation with the Chief Justices inconsequential in the matter of appointment of High Court Judges. [27: See, Ch. IV, Sec.B(b), supra, for this Article of the Constitution.] [28: After referring to Article 124(2) and 217(1), Bhagwati, J. observed as follows (AIR 1982 SC AT 200):It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it necessary to consult are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government. It would therefore be open to the Central Government to override the opinion given by constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court.Even if the opinion given by all the Constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion. For consultation and consult and cases relating thereto see also N. Kannadasan v. Ajoy Khose 2009 (7) SCC 1, 42: 2009 (8) SCALE 351, exhaustively considered.]

However, even after S.P. Gupta, the Central Government always maintained that it had, as a matter of policy, not appointed any Judge without the name being cleared by the Chief Justice of India.The majority ruling in Gupta to the effect that in the consultative process leading to the appointment of a High Court Judge, the view expressed by the Chief Justice of India would have as much significance as the opinion of the State Governor, or the Chief Justice of the High Court concerned, came to be criticised in course of time by a Bench of the Supreme Court in Subhash Sharma.[footnoteRef:29] The Bench emphasized that an independent non-political judiciary was crucial to sustain the democratic political system adopted in India. The Bench now expressed the view that consistent with the constitutional purpose and process, it became imperative that the role of the institution of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Courts of the States.[footnoteRef:30] [29: Subhash Sharma v. Union of India, AIR 1991 SC 631: 1991 Supp. (1) SCC 574] [30: AIR 1991 SC, at 641]

The Bench in Subhash Sharma also criticised the developing practice of a State sending up names for appointment to the High Court direct to the Central Government instead of sending the same to the Chief Justice of the High Court concerned. According to the Bench of the Court: This is a distortion of the constitutional scheme which is wholly impermissible.[footnoteRef:31] The Bench opined that primacy be given to the views of the Chief Justice of India in the matter of selection of the High Court Judges. This would improve the quality of selection. In India judicial review is a part of the basic constitutional structure[footnoteRef:32] and one of the basic features of the essential Indian Constitutional policy. Therefore, to contemplate a power for the Executive to appoint a person despite of his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of the power. The Bench observed: [31: Ibid, at 642.] [32: See, infra, Ch. XLI, for discussion on the Doctrine of Basic Features of the Constitution.]

In India however, the judicial institutions, by tradition, have an avowed political commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of consultation has to be understood and explained consistent with and to promote this constitutional spirit. The appointment is rather the result of collective constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any power or right to appoint Judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.[footnoteRef:33] [33: AIR 1991 SC, at 645]

The Bench, (in Subhash Sharma) therefore, suggested reconsideration by a larger Bench of this aspect of the process of appointment of Judges.

II.The submission made in Note-II of the Attorney-General (quoted above) that primacy of the Higher Judiciary in the making of the appointments of Judges was not provided for in Articles 124(2) and 217(1), and in the working of these constitutional provisions after 1950, appears to stand negatived on good authority.

BUT (it is submitted) that it stands negatived by a consideration of the following (chronological) events and circumstances:

Copy of the Report already on record has been handed over to the Honble Court earlier.(i)In the first Law Commission Report on Judicial Reform after the Constitution was enacted the 14th Law Commission Report (1958) Chaired by former Attorney-General Mr.M.C. Setalvad - after an exhaustive investigation and enquiry (where both the Sitting Chief Justice of India at time (SR Das CJ) as well as another Supreme Court Justice gave evidence before the Law Commission) it was stated as follows:4. Re: Supreme Court - Realizing the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and after consultation with such of the other Judges of the Supreme Court and the High Courts as he may deem necessary. He holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity. Thus has the Constitution endeavoured to put Judges of the Supreme Court above executive control.[footnoteRef:34] [34: There was a solid basis for the weighty observations in paragraph 4 of the Report of the 14th Law Commission (Setalvad) not only as known and presumably disclosed by the Government of the day to the Law Commission (the 14th Law Commission Report was published in 1958), but also disclosed by the facts mentioned in a STUDY (along with Volumes 1 to 4 Select Documents) of a collation of the work of the Constituent Assembly by B. Shiva Rao and other members of the Project Committee: published in 1967-1968. The STUDY and the Select Documents clearly show that immediately after it was decided by the Advisory Committee of the Constitution (on 9th June, 1947) to have a Parliamentary system of governance in preference to any other system of government: the Ad hoc Committee of the Supreme Court in its report on 21st May, 1947 stated that with regard to qualifications and mode of appointments of Judges that We do not think it will be expedient to leave the power of appointing Judges of the Supreme Court to the unfettered discretion of the President of the Union. - Thereafter on 11th June, 1947 the Union Constitution Committee set up by the Constituent Assembly considered the Ad-hoc Committee Report on the Supreme Court (Vardacharair Committee Report) and decided:As regards the methods of appointments it was agreed that the President should appoint the Judges of the Supreme Court after consulting the Chief Justice of the Supreme Court and such other Judges of the Supreme Court and of High Courts as may be necessary for the purpose. (p-559, Vol.2 Select Documents, Framing of the Constitution, Shiva Rao)Note:-This formulation was never changed right upto to the time when it saw its place in draft Article 103 and finally Article 124.]

..............................................................

Working of procedure.11.Re: High Courts - We understand that the constitutional procedure prescribed by article 217 is worked administratively in the following manner: The Chief Justice forwards his recommendation to the Chief Minister who in his turn forwards this recommendation in consultation with the Governor to the Minister of Home Affairs in the Central Government. If, however, the Chief Minister does not agree with the recommendation of the Chief Justice, he makes his own recommendation. It appears that in such a case, the Chief Justice is given an opportunity for making his comments on the recommendation made by the Chief Minister. This practice is not, however, invariably followed, so that, in some cases it happens that the recommendation made by the Chief Minister does not come to the knowledge of the Chief Justice. The rival recommendations are then forwarded to the Minister of Home Affairs who, in consultation with the Chief Justice of India, advises the President as to the selection to be made. The person recommended by the Chief Minister may be, and occasionally is, selected in preference to the person recommended by the Chief Justice.

Difficult position of the Chief Justice. 12.It is obvious that this procedure places the Chief Justice in an extremely awkward position. Though he is expected to be responsible for the transaction of the judicial business of his Court by Judges possessing appropriate qualifications, the procedure in force results, at times, in the rejection of the persons recommended by him and the appointment instead of another person whom he considers unsuitable. A Chief Justice may thus find such a person appointed for a judgeship of his Court at the instance of the local executive and against his own preference. He may be put in the position of having to carry on the work of the Court with Judges, who are incapable of rendering proper assistance or are otherwise unsuitable. The position would be further aggravated by the knowledge of the newly appointed judge that he has been appointed to the bench by the executive against the recommendation of the Chief Justice. The effect of such a situation or even the possibility of such a situation arising, naturally weighs upon the mind of the Chief Justice in making his recommendation. It may well deter him from recommending someone whom he has reasons to know the executive will not favour or lead him to recommend someone who, he believes, would be acceptable to the executive.

Selections made with the concurrence of the Chief Justice.13.The figures made available by the Home Ministry to us, however, show that in the vast majority of cases, the Chief Justices of the various High Courts have concurred in the appointments made to the High Courts after 1950. How is it then that the Chief Justice of the High Courts have happened to agree to the appointment of the unsatisfactory personnel of which, as stated above, we have indubitable evidence?

A possible explanation14.The explanation, perhaps, lies in what has been stated to us by the Chief Justice of India (S.R. Das CJI). In olden days in the matter of the appointment of High Court Judges, the Chief Justice of the High Court had a preponderating voice and generally speaking, the recommendations made by him, as the person responsible for the working of the High Court, used to find support of the Governor, who in such matters could act in his individual discretion. Now, the Governor has to be guided by his Ministers thinks that it is his privilege to distribute patronage and that his recommendations should be the determining factor. The voice of the Chief Justice is not half as effective as it was in the past. Indeed, instances are known where the recommendation of the Chief Justice has been ignored and overruled and that of the Chief Minister has prevailed. This unedifying prospect has brought about some demoralization in the minds of the Chief Justices and therefore before making their recommendations they ascertain the views of the Chief Minister so as to be sure that the recommendation to be made by him, the Chief Justice, will eventually go through, and he will be spared the discomfiture and loss of prestige in having his nomination unceremoniously turned down. The Chief Minister now has a hand, direct or indirect, in the matter of the appointment to the High Court Bench. The inevitable result has been that the High Court appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations, and likes and dislikes have a free play. This necessarily encourages canvassing which, I am sorry to say, has become the order of the day. The Chief Minister holding a political office dependent on the goodwill of his party followers may well be induced to listen and give way to canvassing. The Chief Justice, on the other hand, does not hold his office on sufferance of any party and he knows the advocates and their merits and demerits and a recommendation by the Chief Justice is, therefore, more likely to be on merit alone than the one made by the Chief Minister who may know nothing about the comparative legal acumen of the advocates.

A judge of the Supreme Court has stated as follows:-The methods of selection also make for a lowering of morale and standards. The habit of touting for high judicial office and producing chits and recommendations from this person of influence and that and of carrying back-stair intrigue for appointments is growing and is, to my mind, revolting and dangerous. Also political considerations, and worse, are creeping in and Chief Justices are finding it increasingly difficult to resist this sort of pressure. That ought to be stopped forthwith.A Judge of a High Court has stated:If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years time or so when the last of the Judges appointed under the old system will have disappeared, the independence of the judiciary will have disappeared and the High Courts will be filled with Judges who owe their appointments to politicians.This indeed is a dismal picture and would seem to show that the atmosphere of communalism, regionalism and political patronage, have in a considerable measure influenced appointments to the High Court Judiciary.

Prevalence of canvassing15.Apart from this very disquieting feature the prevalence of canvassing for judgeships is also a distressing development. Formerly, a member of the Bar was invited to accept a judgeship and he considered it a great privilege and honour. Within a few years of Independence, however, the judgeship of a High Court seems to have become a post to be worked and canvassed for.

Procedure in certain States 16.The Chief Justice of a High Court outlined to us the procedure followed in his State in regard to the selection of High Court Judges. According to him, the question is first discussed at a meeting between the Chief Justice and the Chief Minister during which the Chief Justice suggests names and the Chief Minister gives his opinion on the proposal. Thereafter, some discussion takes place and an informal understanding is reached between the two before formal proposals are sent up. He stated that from his experience of such conferences it was clear that political and communal considerations did affect the mind of the executive at the time of the discussion of the names. We have no doubt that in other States, a somewhat similar procedure is followed before the making of a formal recommendation by the Chief Justice. It is not surprising therefore that the concurrence of the Chief Justice has been obtained to many unsatisfactory appointments. In substance, having regard to the position in which he is placed, the Chief Justice surrenders his better judgment and yields to the wishes of the Chief Minister.

Role of the State executive consultation necessary. Role of the State executive consultation necessary17.This is a grave state of affairs and it is for consideration whether it is advisable and practicable to prevent altogether the State executive from having a voice in the selection of the High Court Judges. It has been stressed upon us by a large body of opinion that consultation with the Governor provided by article 217 should be omitted. We have given very anxious consideration to this matter and feel that it will not be right to recommend that the State executive should not be consulted in the matter of appointments. It must be remembered that the appointment to a judgeship is made by the President who is himself the head of the executive. The High Court is the highest judicial organ of the State and it is the State exchequer which pays for its maintenance. It would, therefore, be unreasonable not to allow the State executive to express its views with reference to a person recommended for judgeship by the Chief Justice of the State High Court. While the Chief Justice would be the most competent person to evaluate the merit and efficiency of a person recommended, there may be, and frequently are, other matters relating to the person recommended which the State executive alone would be in a position to know and of which they may inform the Chief Justice. It may be that the local position of the person proposed, his character and integrity his affiliations and the like, which may have a considerable bearing upon his efficient functioning as a Judge may not all be within the knowledge of the Chief Justice. For these reasons, it seems to us reasonable and necessary that where the Chief Justice recommends a person for a judgeship, the State executive should have an opportunity to offer its comments upon that recommendation. It appears to us, however, that it should be left to the Chief Justice on whom lies the responsibility of the efficient working of the Court to determine whether or not a person is competent to be a Judge or from which of the sources recognized by the Constitution a judge should be drawn to fill a particular vacancy. The consultation with the local executive and the information which it may supply should be limited to other factors such as we have mentioned above. We are also clearly of the view that it should not be open to the State executive to propose a nominee of their own and forward the name of such nominee to the Centre. If the State executive disagrees with the recommendation of the Chief Justice by reason of the nature mentioned above, it should be open to it to disagree with the recommendation and request the Chief Justice to make a fresh recommendation.

Recommendation of the Chief Justice to be necessary for appointments.Steps to avoid delay.State Governments not to make rival nominations18.In order to avoid delays it would be advisable that the Chief Justice of the State should forward direct to the Chief Justice of India a copy of the recommendation made by him to the executive of the State.

19. Having regard to what has been stated above, it is in our view very essential, that the hands of the Chief Justice in making his recommendation should be strengthened. Instead of the constitutional provision requiring a consultation with the Chief Justice in the matter of the appointment of judges, it should require an appointment of a judge being made on the recommendation of the Chief Justice of the State. If the Chief Justice is assured that no appointment can be made unless he recommends the person, the fear which the Chief Justice at present has of executive interference and the tendency to enter into compromise with the executive which have been noticed above will disappear.

Concurrence of the Chief Justice of India essential.An additional safeguard.20. It may be asked whether the acceptance of this suggestion will not place the Chief Justice in a dominating position, able as it were, to dictate in regard to the person to be appointed and lead to arbitrary and even capricious appointments by the Chief Justice. It may be urged that Chief Justices may also be moved on occasions by considerations of communalism and favouritism. In order to avoid contingencies of that character, we further propose that the constitutional provision should be amended so as to require not merely consultation with the Chief Justice of India but his concurrence in the proposed appointment. The Chief Justice of India would naturally keep himself informed about persons suitable of the Bar as well as in the Services for appointment to the Bench at the Bar as well as in the Services and will be in a position to prevent unsatisfactory appointments being made on the recommendation of the Chief Justices of the States if ever such occasions arise.

Note: Although Article 217 (1) was not amended, as was suggested yet the Executive assured Parliament that in all but very few cases the advice of the Chief Justice of India was being followed.

This report is also already on record having been handed over on an earlier occasion.(ii)The 14th Report of the Law Commission on Judicial Reforms (1958) the first after 125 years was tabled in Parliament on 25.2.1959 and there followed a detailed discussion on it in the Rajya Sabha on 23rd to 25th November, 1959 in the course of which the Home Minister Mr.Govind Bhallabh Pant and the Law Minister A.K. Sen (at the end) said:(i)Replying to the debate on 24.11.1959 the Honble Home Minister Mr. Govind Ballabh Pant stated as follows: (page 288 of Rajya Sabha Debates of 24-11-1959)Sir, so far as appointments to the Supreme Court go, since 1950 when the Constitution was brought into force, nineteen Judges have been appointed and everyone of them was so appointed on the recommendation of the Chief Justice of the Supreme Court. I do not know if any other alternative can be devised for this purpose. The Chief Justice of the Supreme Court is, I think, rightly deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States. So we have followed the advice of the most competent, dependable and eminent person who could guide us in this matter.Similarly, Sir, so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except one, i.e., 210 out of 211 were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by Government had the support of all persons who were connected with this matter. As Hon. Members are aware, under, I think, Article 217, the Chief Justice of the High Court, the Chief Justice of the High Court, the Chief Minister of the State concerned and the Governor first deal with these matters. Then they come to the Home Ministry and are referred by the Ministry to the Chief Justice of India and whatever suggestions or comments he makes are taken into consideration and if necessary, a reference is again made to the Chief Minister and the High Court. But as I said, these 196 appointments were made in accordance with the unanimous advice of the Chief Justice of the High Court, the Chief Minister of the State, the Governor and the Chief Justice of India.

(ii)Speaking in the Rajya Sabha on 25.11.1959 the Law Minister Mr.Asoke Sen stated (page 394 to 395): .........it is my duty to point out to the honourable House again as I did in the Lok Sabha when the Law Commission first sent an interim report-call it an interim report or some report before the final one pointing out that Judges have been appointed on extraneous considerations, we gave them the facts and figures concerning all the appointments made since 1950. We drew their pointed attention to the fact that, as the Home Minister pointed out yesterday, except in the case of one Judge out of the 176 odd Judges appointed since 1950, all were appointed on the advice of the Chief Justice. With regard to the one there was difference of opinion between the local Chief Justice and the Chief Justice of India and the Government accepted the advice of the local Chief Justice rather than the Chief Justice of India. But it was not their nominee. We should have expected the Law Commission, in all fairness, to have dealt with the communication from the Government giving facts of all the appointments not only of the High Courts but of the Supreme Court. I am not saying that they were obliged to do so, but it is only a fair thing to do, namely, when you bring certain accusation in a solemn document like the Law Commissions Report, you should deal with all the arguments for and against. We should have expected in all fairness that these facts ought to have been dealt with. Unfortunately no facts are set out so that it is impossible to deal with. If it was said that this had been the case with A, this had been the case with B or C, it would have been easy for us to deal with them. Especially when we had given all the facts concerning the appointment of each and every Judge since 1950. Dr. H.N. Kunzru: But the Commission has stated how the agreement was arrived at. That is not creditable to the Government or to the Judges. Shri A.K. Sen: It is impossible for us to imagine that the Chief Justice of India, whose advice was accepted in the case of all the appointments except one, as I said was made to agree. You know we had Chief Justices like Mr.Mehr Chand Mahajan. I would be absolutely reluctant to acknowledge that a man like him could be weighed upon by any Government a man like Chief Justice Mr.Kania, who was responsible for most of the appointments since the Constitution, a man like the Chief Justice Mr.S.R. Das, who was very firm in these matters, as everyone knows, and who frequently disagreed with the Government and whose disagreed advice had been accepted by the Government finally in many matters. As I said, rightly or wrongly, such an important accusation ought not to be devoid of facts. That is all that I can submit. I am not criticizing the Law Commission. I am not trying to blame them. They are entitled to write in the way they have done. But on behalf of the Government it is impossible to deal with bare allegations if the facts are not there because we cannot deal with bare allegations except to make bare denials. Shri AMOLAKH CHAND (Uttar Pradesh): You have given expression to these views.Shri A.K. SEN: As I said, we can only express our views to the contrary. We cannot do anything more than that. But the facts are there. Of course, the denial could have been more concrete. That is the position.Comment: We must assume therefore that the understanding of those in charge of working of the Constitution was that the advice of the CJI was to be and was invariably accepted by the Executive whosoever could be said to have the power to appoint. This was avowedly the settled practice followed in the appointment of Judges in the Higher Judiciary.NOTE: Copy of the entire debate as printed in Rajya Sabha Debate is on record it was handed over to their Lordships during the hearing in May, 2015 (i.e. before the Order dated 12th May 2015).

(iii)The Practice later became embodied in judicial dicta. In the first authoritative decision of the Supreme Court of India on this point (where the question before a Bench of 7 Judges was whether or not the Governor (as also the President) were obliged to act in accordance with the advice of their respective Council of Ministers) it was stated: in Samsher Singh vs. UOI (7J) 1974 (2) SCC 831[footnoteRef:35] as follows: [35: In Special Reference No. 1 of 1964 (1965 (1) SCR 413 at page 446) a Bench of 7 Judges had stated the exclusivity of the Judicial Bench in interpreting the Constitution: That the nature, scope, effect and interpretation of any provision of the Constitution has been entrusted by the Constitution of India solely and exclusively to the judicature of this country. And so we feel no difficulty for holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the judicature of this country. That is why we must overrule Mr. Seervais argument that a question of nature, scope and effect of the powers of the House (i.e. Legislative Assembly) cannot be said to lie exclusively with the judicature of this country.]

149. In the light of the scheme of the Constitution we have already referred to, it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Ministers arrive at such opinion satisfaction or decision. The independence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian Justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.

(iv)After the decision in Samsher Singh, no Government ever asked for a reconsideration of the observations made in para 149 of Samsher Singh Case 1974 (2) SCC 831 (7J), on the ground that this was not their understanding of the provisions contained in Article 124(2) and Article 217(1), or in its working nor that these observations were obiter and not binding.

Note: On the contrary, in a later Bench decision of 5 Judges Union of India vs. Sankal Chand Seth 1977 (4) SCC 193 (stated by the Learned Attorney-General to contain obiter observations since the judgment in Sankalchand came after the transferred Judge (Sankalchand Sheth) had voluntarily withdrawn his petition) the passage in para 149 in Samsher Singh was reiterated by the Court (speaking through Justice Y.V. Chandrachud) in para 41:[footnoteRef:36] [36: 1977 (4) SCC 193 (5J).]

41. This then, in my judgment, is the true meaning and content of consultation as envisaged by Article 222(1) of the Constitution. After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer. But it is necessary to reiterate what Bhagwati and Krishna Iyer, JJ., said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India: In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. (page-873). It is hoped that these words will not fall on deaf ears and since normalcy has now been restored[footnoteRef:37], the differences, if any, between the executive and the judiciary will be resolved by mutual deliberation, each party treating the views of the other with respect and consideration. [37: The Internal Emergency of June 1975 was lifted in January/March 1977. ]

What is significant is that four years after Samsher Singh the observations in para 149 (that the last word must belong to the Chief Justice of India was again referred to with approval by the Court in Sankalchands case (Bench of the 5 Justices).

(v)In the judgment in the First Judges Case (S.P. Gupta 1981) (since overruled) Justice Bhagwati (with three other Judges in a Bench of sevenJudges) did say that the ultimate power to appoint rest with the Central Government and that is in accordance with the constitutional practice prevailing in all democratic countries: 1981 Suppl. SCC 87 at page 230.

But as was pointed out in the opening address of counsel for the Petitioner (on the merits) there was a corrigendum to Justice Bhagwatis judgment which (the same judgment in which His Lordship had said that the ultimate power to appoint rests with the Central Government) which judgment (after the corrigendum) read as follows:

See corrigendum of page 57 of AIR 1982 S.C. 149 at p-201 lines to 10Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds. The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India.

(ix)The 121st Law Commission Report (1987) the Law Commission chaired by Justice D. A. Desai [see Background note of the Petitioners on brief synopsis of events handed in to the Honble Bench on 27th April, 2015 (pages 13 to 16)] the Law Commission for the first time suggested a constitutional amendment in what was described as a NEW MODEL, a broad-based National Judicial Service Commission for appointing Judges of the Supreme Court and for appointing Judges (including transfers of Judges) for High Courts and stated: Unquestionably the Chief Justice of India must be at the head of this body (commission) and must be designated as Chairman. This pre-eminent position should not be diluted at all.

The Commission was to have a preponderating number of Sitting Judges.

The composition of the Commission, as recommended for the appointment of Judges of the Supreme Court and of the High Courts was 11 Members out of which seven would be sitting Judges with one retired Chief Justice (i.e. 8 Judges in all) the three non-Judges were, to be the Law Minister, the Attorney General of India, and an outstanding law academician (8:3). It was further stated: (in acknowledgement of the federal nature of Indias Constitution) as follows: to make the new scheme operationally effective the National Judicial Service Commission while deliberating over selection and appointment of Judges of the High Court must co-opt the Chief Justice of the High Court in which the vacancy has occurred and which is under the process of being filled in as well as the Chief Minister of the State in which the High Court situate.

In accordance with the recommendations of the Report of Justice D. A. Desai Law Commission, Bill No. 93 of 1990 was introduced (by the Government of the day) in the Lok Sabha on 18th May, 1990[footnoteRef:38] (but with a Commission of 5 Members with Members of the Judiciary being predominant). The Bill could not be passed since the Lok Sabha was prematurely dissolved. [38: In the Statement of Objects and Reasons (mentioned in Subhash Sharma v. Union of India (3J) 1991 Supp. 1 SCC 594) at page 588 is stated that this Bill was introduced so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such appointments without undue delay. The idea of a National Judicial Commission pre-dates and precedes the Collegium System and cannot be justified on the ground that the NJAC was introduced because the Collegium System did not work well. ]

(x)In the Affidavit filed by the Union of India in the Second Judges Case (1993) it was categorically asserted by the Union of India as follows:

As regards the appointment of Judges made, not in consonance with the views expressed by the Chief Justice of India, it is respectfully submitted that since January 1, 1983 to April 10, 1993, there have been only seven such cases, five of these were in 1983 (2 in January 1983, 2 in July 1983, 1 in august 1983); one in September 1985 and one in March 1991, out of a total of 547 appointments made during this period.

This was so factually noted and recorded in the judgments reported 1993 (4) SCC 441 p-618 (para 292) p-717 (para 498) p-461 (para 369).

From this same set of facts different conclusions were drawn

[A]It was stated by the majority (7 Judges) that:370. It is thus obvious from the facts and figures given by the executive itself that in actual practice the recommendations of the Chief Justice of India have invariably been accepted.

[B]The minority (2 Judges) (whilst dissenting on the main point), stated (i)(Ahmadi J) page 292 of 1993 (4) SCC 441 it only showed that the executive acts with restraint and with due deference to the views of the Chief Justice of India. It would be unfair to the read the attitude of accommodation as one of total submission!NOTE: This is not much different from what was said in para 370 quoted above.

(ii)(Punchhi J) pages 717-718 of 1993 (4) SCC 441....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 appointments five were made in 1983, one in 1985 and one in 1991. This is the fallout of S.P. Gupta case[footnoteRef:39]. 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 the factum of 540 appointments going through with his concurrence..... [39: S.P. Gupta v. Union of India, 1981 Supp. SCC 87: (1982) 2 SCR 365]

Again not much different from para 370 quoted above.

(Punchhi J) in 1993 (4) SCC 441 at page 719[footnoteRef:40]: had also said that S.P.Gupta was wrong when it permitted the Executive to disregard the views of the CJI. [40: 500. Thus S.P. Gupta case as I view it, insofar as it goes to permit the executive trudging the express views of disapproval or non-recommendation made by the Chief Justice of India, and for that matter when appointing a High Court Judge the views of the Chief Justice of the High Court, is an act of impermissible deprival, violating the spirit of the Constitution, which cannot be 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 two needs to be maintained with more consideration.]

Conclusion:

The conclusion from all this is that whatever be the interpretation of the true meaning of consultation either as not binding or Concurrence either generally or contextually or whatever Dr.Ambedkar intended to provide in draft Article 103 (=Article 124), as a matter or practice the provisions of Article 124(2) as well as Article 217(1) were understood by those administering them and the Constitution was in practice worked, ever since 1950 on the premise that in the matter of appointment of Judges of the Higher Judiciary the last word belonged to the Chief Justice of India.

Practice is an very important element in constitutional interpretation. In State of Rajasthan v. Union of India 1977 (3) SCC 592 p-621 at para 56 (7 Judges) it was stated by CJ Beg: as follows: (para 56)

56. A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal. I mention the use that has been made of the constitutional provisions because constitutional practice and convention become so interlinked with or attached to constitutional provisions and are often so important and vital for grasping the real purpose and function of constitutional provisions that the two cannot often be viewed apart.

As contrasted with this: the present Constitutional Amendment is far removed from the last word being with the Chief Justice of India (a vital facet of the independence of the Judiciary); on the contrary under the new system even with unanimity amongst three of the senior-most judges in the Supreme Court of India (including the Chief Justice of India) all members, ex office, in the NJAC a persons name as judge cannot be recommended by the Commission even if found suitable by all 3 seniormost Judges of the Supreme Court unless at least one (more) amongst non-Judge members agreed i.e. Law Minister or one of eminent persons co-operates and agrees: bringing into play the prospect of what Senior Advocate Arvind Datar had rightly characterised (in the opening of the case) as promoting as structured bargaining; not conducive either to an independent or a competent Higher Judiciary.

***

Exhibit-IImportance and guarantee of Independence of Judiciary:(relevant extracts from Constituent Assembly Debates (1947 to 1949)

1.21-07-1947Appointments of High Court Judges in Provincial Judiciary.Sardar Vallabhai PatelThis clause proposes to incorporate the provisions of the 1935 Act regarding High Courts, but regarding the appointment of the Judges it provides that the appointment shall be made by the President of the Federal Legislature in consultation with the Chief Justice of the Supreme Court and the, Governor of the Province. With so many checks and counter checks these appointments place the High Court Judges beyond any influence of the parties or any other influences and beyond any suspicion or doubt of such a nature. There is thus enough guarantee provided for the independence of the Judiciary.- Smt. G. DurgabhaiThey are the repositories of the Constitution; they have got to interpret the constitution. They are the guardians of the fundamental rights in the Constitution. Every common man must look to these courts for fair treatment and justice. They have got to see that their rights are safeguarded and they are in safe custody. Therefore if we have got to achieve this I we have got to see to the successful working of these High Courts and this depends mostly upon the quality of the judiciary and the manner in which it is composed. The independence of the judiciary is a thing which has to be decided and this independence to a large extent depends on the way in which these judges are to be appointed. They should not be made to feel that they owe their appointment either to this person or that person or to this party or to that party. They have to feel that they are independent. It is only in that case that get efficiency of administration of justice. It is with a view to secure this kind of independence that some sort of check is necessary and the authors of the clause have provided for this check by bringing in some external authority to have something to do with the appointments relating to the Provincial courts. We mayfell why the Chief Justice of the Supreme Court also is brought into this picture but in the interests of the purity of administration of justice the Supreme Court has a great part to play hereafter. It is the highest of the High Courts of India and it will have a general advisory jurisdiction and a general appellate jurisdiction which is similar to that now exercised by the Privy Council relating to Indian units. Therefore, it is to review the work of all High Courts and also exercise the powers of general superintendence, direction and control in all matters relating to the provincial judiciary Several matters of the High Courts have got to one before this Court by way of revision, reference and appeal. Therefore, the Chief justice of the Supreme Court has got a great deal to do with these High Courts and not only that, the Supreme Court in itself has got to be composed from among the judges of the High Courts as we see. Therefore considering all these matters I feel that it is highly necessary that the Chief Justice of the Supreme Court is consulted by the President of the Federation in making these appointments to the provincial courts.

2.10-12-1948Draft Article 40A separation of powers between Legislature, Executive and the Judiciary.K.T. ShahFor one thing, Sir, if you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature. This, in my view, is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was contact between the Judiciary and the Legislature, for instance, if it was possible tointerchange between the highest judicial officers and the membership of the legislature, then, I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case. The Legislature in a democratic assembly is bound to be influenced by Party reasons rather than by reasons of principle.

Mr. Shibban Lal SaksenaEverywhere, its independence must be guaranteed and I have given amendments that the Supreme Court must be completely independent of the judicature and the legislature. It must be the one body which should decide what is guaranteed with respect to our liberty, etc. I hope this amendment will at least help us to see that the Supreme Court's independence is not in any way minimized. In regard to this I heard one of the most eminent authorities in the Assembly say "Today the High Courts are not independent; they are influenced by the political consequences of their actions.I hope in future our Supreme