# SHRI ASHOK TANWAR AND ANR v. STATE OF H.P. AND ORS

- **Citation:** [2004] Supp. 6 S.C.R. 1065
- **Court:** Supreme Court of India
- **Decided:** 2004-12-17
- **Case number:** Civil Appeal No. 8248 of 2004
- **Bench:** R.C. Lahoti, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-ashok-tanwar-and-anr-v-state-of-h-p-and-ors-20273
- **Pages:** 23

## Headnote

Constitution of India, 1950-Article 217 and 223.
A
B
High Court-Acting Chief Justice-Power and duties of-Head, no C
restriction or limitation in performation of duties of the Chief justice.
Consumer Protection Act, 1986.
Section 16-State Consumer Redressal Commission-President-ApD
pointment-Process-Jnitiation of-Consultation with the Acting Chief JusticeHeld, valid.
Considering the impending vacancy arising to the post of the
President of the H.P. State Consum".r Redressal Commission, state
government decided to take the services of a sitting judge of the High E
Court of Himachal Pradesh for which a request was made that the
proposal of the state government be placed before the Hon'ble Chief
Justice, High Court for consideration and recommendation of the name
proposed. Reference made by the state government not being in conformity with the provisions of law, High court addressed a letter to the F
state government, pointing out the defect, that when the appointment
was to be made the proposal was to be initiated as per the procedure
followed for the appointment of High Court Judge. State Government,
accordingly, wrote the second letter to the Registrar General of the High
Court requesting the Hon'ble Chief Justice to initiate the process for
filling up the vacancy to the post of President of the State Commission G
in accordance with the provisions of the Act and the law laid down by
this Court in Ashish Handa, Advocate v. Hon 'ble the Chief Justice of High
Court of Punjab & Haryana and Others. Registrar General of the High
Court conveyed recommendation of the Chief Justice for appointment
of the name proposed as President of the State Commission holding H
1065
1066
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
additional charge of the post, further stating that the steps may be taken
for appointment of President of the State Commission in accordance
with law and rules. Appellants, residents of the state, claiming to espouse
public interest challenged the appointment as being not in accordance
with law and was contrary to the decisions of this Court and sought for
B writ of quo warranto and to quash the appointment of mainly contending
that there was a defect in the initiation process for appointment to the
post of President of the State Commission on the ground that the process
was initiated by the State Government instead of Chief Justice and that
the Acting Chief Justice did not consult the two senior most Judges of
c
D
E
the High Court before recommending the name for appointment as the
President of the State Commission. Reliance on the decisions of Ashish
Handa, Advocate v. Hon 'ble the Chief Justice of High Court of Punjab &
Haryana and Others (supra) and Supreme Court Advocates-on-Record
Association and Others v. Union of India was placed. High Court dismissed the writ petition.
It was contended by the appellant that recommendation made by
the Acting Chief Justice without consulting two senior most judges as
required in the light of decisions of this Court in Supreme Court Advocates.:.on Record Association (supra) and Ashish Handa (supra), the High
Court ought to have allowed the writ petition and quashed the appoint- ,
ment of respondent No. 3. It was also contended that th~ Acting Chief
Justice could not initiate the process for appointment under Section 16
of the Act as it is only the Chief Justice, who is to be consulted; the
Acting Chief Justice is not appointed to the Office of Chief Justice, he
is only to discharge the duties of the Chief Justice. Reliance was placed
F on the decision of High Court of Allahabad in Bishal Chand Jain v.
Chattur Sen and Others.
Dismissing the appeal, the Court
HELD : I.I. The process of consultation envisaged under Section
G 16 of the Act can neither be equated to the constitutional requirement
of consultation under Article 217 of the Constitution oflndia in relation
to appointment of a Judge of a High Court nor can it be placed on the
same pedestal. Consultation by the Chief Justice

## Text

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SHRI ASHOK TANWAR AND ANR.
v.
STATE OF H.P. AND ORS.
DECEMBER 17, 2004
[R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN,
B.N. SRIKRISHNA AND G.P. MATHUR, JJ.]
Constitution of India, 1950-Article 217 and 223.
A
B
High Court-Acting Chief Justice-Power and duties of-Head, no C
restriction or limitation in performation of duties of the Chief justice.
Consumer Protection Act, 1986.
Section 16-State Consumer Redressal Commission-President-ApD
pointment-Process-Jnitiation of-Consultation with the Acting Chief JusticeHeld, valid.
Considering the impending vacancy arising to the post of the
President of the H.P. State Consum".r Redressal Commission, state
government decided to take the services of a sitting judge of the High E
Court of Himachal Pradesh for which a request was made that the
proposal of the state government be placed before the Hon'ble Chief
Justice, High Court for consideration and recommendation of the name
proposed. Reference made by the state government not being in conformity with the provisions of law, High court addressed a letter to the F
state government, pointing out the defect, that when the appointment
was to be made the proposal was to be initiated as per the procedure
followed for the appointment of High Court Judge. State Government,
accordingly, wrote the second letter to the Registrar General of the High
Court requesting the Hon'ble Chief Justice to initiate the process for
filling up the vacancy to the post of President of the State Commission G
in accordance with the provisions of the Act and the law laid down by
this Court in Ashish Handa, Advocate v. Hon 'ble the Chief Justice of High
Court of Punjab & Haryana and Others. Registrar General of the High
Court conveyed recommendation of the Chief Justice for appointment
of the name proposed as President of the State Commission holding H
1065
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
additional charge of the post, further stating that the steps may be taken
for appointment of President of the State Commission in accordance
with law and rules. Appellants, residents of the state, claiming to espouse
public interest challenged the appointment as being not in accordance
with law and was contrary to the decisions of this Court and sought for
B writ of quo warranto and to quash the appointment of mainly contending
that there was a defect in the initiation process for appointment to the
post of President of the State Commission on the ground that the process
was initiated by the State Government instead of Chief Justice and that
the Acting Chief Justice did not consult the two senior most Judges of
c
D
E
the High Court before recommending the name for appointment as the
President of the State Commission. Reliance on the decisions of Ashish
Handa, Advocate v. Hon 'ble the Chief Justice of High Court of Punjab &
Haryana and Others (supra) and Supreme Court Advocates-on-Record
Association and Others v. Union of India was placed. High Court dismissed the writ petition.
It was contended by the appellant that recommendation made by
the Acting Chief Justice without consulting two senior most judges as
required in the light of decisions of this Court in Supreme Court Advocates.:.on Record Association (supra) and Ashish Handa (supra), the High
Court ought to have allowed the writ petition and quashed the appoint- ,
ment of respondent No. 3. It was also contended that th~ Acting Chief
Justice could not initiate the process for appointment under Section 16
of the Act as it is only the Chief Justice, who is to be consulted; the
Acting Chief Justice is not appointed to the Office of Chief Justice, he
is only to discharge the duties of the Chief Justice. Reliance was placed
F on the decision of High Court of Allahabad in Bishal Chand Jain v.
Chattur Sen and Others.
Dismissing the appeal, the Court
HELD : I.I. The process of consultation envisaged under Section
G 16 of the Act can neither be equated to the constitutional requirement
of consultation under Article 217 of the Constitution oflndia in relation
to appointment of a Judge of a High Court nor can it be placed on the
same pedestal. Consultation by the Chief Justice of the High Court with
two senior most Judges in selecting a suitable candidate for appointment
~·
H as a Judge is for the purpose of selecting the best person to the high
..
SHRI ASHOK TANWAR v. STATE
1067
office of a Judge of the High Court as a constitutional functionary. A
Consultation with the Chief Justice of the High Court in terms of Section
16 of the Act is a statutory requirement. 11077-C-D]
1.2. Expression 'consultation' used in Article 217 of the Constitution of India in relation to appointment of High Court Judges cannot B
be read in the same way into 'consultation' as contemplated under
Section 16 of the Act in the light of what is stated above in the Supreme
Court Advocates-on-Record Association. The meaning of the word 'consultation' must be given in the context of an enactment. If the argument
that the consultation process in regard to appointment of a Judge or
retired Judge of High Court to the State Commission under Section 16 C
must be in the same manner as required under Article 217 of the
Constitution, it will lead to anomalous situation. [1081-C-D]
Ashish Handa, Advocate v. Hon 'ble the Chief Justice of High Court
of Punjab & Haryana and Others., JT (1996) 3 SC 248 and Supreme Court D
Advocates-on-Record Association and Others v. Union of India, [1993) 4
sec 441, relied on.
1.3. Under Article 217(1) of the Constitution, consultation contemplated with constitutional functionaries mentioned therein is for the
purpose of appointment ofa Judge ofa High Court and not for appointE
ment ofa person as the President of the State Commission under Section
16 of the Act. [1081-El
1.4. Insistence on 'consultation' by the Chief Justice of a High Court
with his two senior most colleagues in the High Court for the purpose of F
Section 16 of the Act is unwarranted. It is clarified that the consultation
for the purpose of Section 16 of the Act in relation to the appointment of
a Judge or a retired Judge of a High Court as President of the State
Commission cannot betaken or equated to consultation process as required
under Article 217 of the Constitution. [1081-G-H; 1083-F)
1.5. Impression that Chief Justice of a High Court has to consult
G
his two senior most colleagues before recommending a sitting or retired
Judge for appointment as President of a State Commission as per
Section 16 of the Act is not correct and not approved. To put it positively, for the purpose of Section 16 of the Act a Chief Justice ofa High H
1068
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A Court need not consult his two senior most colleagues in the High Court
for recommending a sitting or retired Judge of a High Court for appointment as President of a State Commission that in the matter of
appointment of a sitting or retired Judge of a High Court as President
of the State Commission and the process must be initiated by the Chief
B Justice under Section 16 of the Act and 'consultation' contemplated in
the said Section is 'consultation' only with the Chief Justice of the High
Court and not with the collegium. (1083-G-H; 1084-C-D]
1.6. Argument that the 'consultation' under Section 16 of the Act
should be with the Chief Justice of the High Court and not with the
C Acting Chief Justice is not acceptable and this argument does not pose
any serious problem having regard to the clear constitutional provision.
(1084-D)
D
E
Bishal Chand Jain v. Chattur Sen and Others, AIR (1967) All. 506,
distinguished.
l. 7. When Article 223 of the Constitution in specific terms confers
powers on acting Chief Justice to discharge the functions of the office
of Chief Justice without any limitation or rider, it cannot be accepted
that an acting Chief Justice cannot perform the duties expected to be
performed by him under Section 16 of the Act. No restriction or limitation in performance of duties by acting Chief Justice can be read into
the said Article. The Article also does not indicate as to which of the
duties of the Chief Justice can be performed or which of the duties
cannot be performed by the acting Chief Justice. Appointment of one
or the other Judges of a High Court as acting Chief Justice is meant to
F carry on the work of the High Court and the judiciary in the State.
Consultation with acting Chief Justice under Section 16 of the Act is to
be taken as consultation with the Chief Justice of High Court. Powers
conferred under Article 223 of the Constitution on an acting Chief
Justice to perform the duties of the Chief Justice is available for the
G purpose of Section 16 of the Act. (1086-F-G; 1087-D]
· 2.1. This apart, the interpretation ofa provision of the Constitution
having regard to various aspects serving the purpose and mandate of
the Constitution by this Court stands on a separate footing. (1077-D]
H
R.C. Poudyal v. Union of India and Others, (1994] Supp. 1 SCC 324
SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1069
and Ms. Aruna Roy and Other v. Union of India and Others, AIR (2002) A
SC 3176, referred to.
2.2. No statutory provision can stand in the way of constitutional
provision in case of conflict between them. [
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8248 of
2004.
From the Judgment and Order dated 30.7.2001 of the Himachal Pradesh
High Court in C.W.P. No. 647 of 2000.
G.E. Vahanvati, Solicitor General, (NP), Amarendra Saran, Additional
Solicitor General, Ramji Srinivasan, Ms. R. Hakeem, Sajith P. Gagan Sareen
B
c
for Attorney General of India, K.P. Singh and L.R. Rath, Mahabir Singh,
Ajay Pal, Ms. Madhusmita Bora, Nikhil Jain, Gagandeep Sharma, Amit
Veer Singh, Balaji Srinivasan V. Sudeer, MBRS. Raju, Ms. S. Sunita, S. D
Sachin, J.B. Ravi and Riju Raj Jamawal for the appearing parties.
The Judgment of the Court was delivered by
SHIV ARAJ V. PATIL, J. : Leave granted.
A Bench of three learned Judges of this Court made the following order
of reference on 7th March, 2002: -
E
"In the present case, under Section 16 of the Consumer Protection Act, the President of the State Consumer Disputes Redressal F
Commission has to be appointed in consultation with the Chief
Justice of the State. The question which arises is whether consultation with an Acting Chief Justice is sufficient compliance or not.
This question involves interpretation of Articles 217 and 223 of the
Constitution and as there is no decision of this Court which can be
applied in the present case, then by virtue of Article 145(3) of the G
Constitution this case involving the said question of Jaw involving
interpretation of the Constitution should be heard by a Bench ofnot
less than five learned Judges.
Let the papers be piaced before the Hon'ble the Chief Justice fl
A
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
of India for appropriate orders for hearing of the case as expeditiously as possible and within a period of four months."
Articles 217 to the extent relevant and 223 of the Constitution oflndia
read: -
"2 I 7. Appointment and conditions of the office of a Judge of a High
Court.- (I) Every Judge of a High Court shall be appointed by
the President by warrant under his hand and seal after consultation
with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of the High court, and shall hold office, in the case
of an additional or acting Judge, as provided in article 224, and in
any other case, until he attains the age of sixty-two years:
"223. Appointment of acting Chief Justice.- When the office of
Chief Justice of a High Court is vacant or when any such Chief
Justice is by reason of absence or otherwise, unable to perform the
duties of his office, the duties of the office shall be performed by
such one of the other Judges of the court as the President may
appoint for the purposes."
E
On 3rd March, 2000 The Financial Commissioner-cum-Secretary (F&S),
Government of Himachal Pradesh, addressed a letter to Registrar General,
Himachal Pradesh High Court stating that Justice P.N. Nag (retired Judge
of the High Court} shall cease to hold the post of President of H.P. State
Consumer Disputes Redressal Commission, Shimla (for short 'the State
F Commission) on 4.3.2000, after attaining the age of67 years. In accordance
with the provisions contained in The Consumer Protection Act, 1986 (for
short 'the Act'), a person who is or has been a Judge of High Court can be
appointed as President of the State Commission, after consultation with the
Chief Justice of the High Court. After consideration the State Government
decided to take the services of Justice Surinder Swaroop, a sitting Judge of
G the High Court of Himachal Pradesh for appointment as President of the
State Commission. Therefore, he requested that the proposal of the State
Government may kindly be placed before the Hon'ble Chief Justice, High
Court for consideration and recommending the name of Justice Surinder
Swaroop for appointment as President of the State Commission 0'1 part-time
H
basis.
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SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1071
On the same day the High Court addressed a letter to the State GovA
ernment indicating that there was defect in the process adopted by the State
Government and that the reference made by the State Government was not
in conformity with the provisions of law as the executive is expected to
approach the Hon'ble Chief Justice when the appointment was to be made,
to initiate the proposal as per the procedure to be followed for appointment B
of High Court Judge.
The State Government wrote the second letter to the Registrar General
of the High Court requesting the Hon'ble Chief Justice to initiate the process
for filling up the vacancy to the post of President of the State Commission
in accordance with the provisions of the Act and the law laid down by this C
Court in Ashish Honda, Advocate v. Hon 'ble the Chief Justice of High Court
of Punjab & Haryana and Others'.
On 7th March 2000 the Registrar General of the High Court addressed
a letter to the Financial Commissioner-cum-Secretary (F&S) of the State
Government conveying recommendation of the Chief Justice for appointment of Mr. Justice Surinder Swaroop, a sitting Judge of the High Court,
as President of the State Commission holding additional charge of the post.
In the said letter it was also stated that the steps may be taken for appointment of Mr. Justice Surinder Swaroop (respondent No. 3 herein) as President
of the State Commission in accordance with law and rules. Thereafter, a
notification dated 13th March, 2000 was issued by the Governor, Himachal
Pradesh, appointing Justice Surinder Swaroop as President of the State
Commission.
Appellant No. 1, a permanent resident of Namol and a practicing
advocate at Solan and appellant No. 2, a retired Research Officer resident
of Shimla, filed Civil Writ Petition No. 647 of 2000 in the High Court
claiming to espouse public interest stating that they were interested in proper
functioning of the State Commission. According to them the appointment
ofrespondent No. 3 -
Justice Surinder Swaroop -
as President of the State
.Commission was not in accordance with law and was contrary to the
decisions of this Court.
They sought for writ of quo warranto to the
respondent No. l to quash the appointment of respondent No. 3 mainly
contending that there was a defect in the initiation process for appointment
I.
JT (1996) 3 SC 248.
D
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F
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SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
A to the post of President of the State Commission on the ground that the
process was initiated by the State Government instead of Chief Justice and
that the Acting Chief Justice did not consult the two senior most Judges of
the High Court before recommending the name of respondent No. 3 for
appointment as the President of the State Commission. In support of these
B contentions they placed reliance on the decisions of this Court in Ashish
Handa, Advocate v. Hon 'ble the Chief Justice of High Court of Punjab &
Haryana and Others (supra) and Supreme Court Advocates-on-Record
Association and Others v. Union of India2.
c
Respondent Nos. I and 3 resisted the writ petition and respondent No.
2, the High Court, made the position clear having regard to the records.
The High Court, after consideration of the respective contentions
advanced on behalf of the parties and in the light of the decisions of this
Court, held that the case of Ashish Handa (supra) related to the initiation
D of 'process', which was required to be followed in making appointment of
President of the State Commission, and that such process should not have
been initiated by the Government but it ought to have been initiated by the
Chief Justice. On facts the High Court found that although initially the
process was started by the Government proposing the name of respondent
E
No. 3, respondent No. 2, however, was aware of the legal position and it
immediately drew the attention of respondent No. l that the procedure
adopted by respondent No. l was not in accordance with law. Therefore,
second letter was addressed by respondent No. l to respondent No. 2.
Respondent No. 2 on receipt of the second letter made the recommendation
to appoint respondent No. 3 as President of the State Commission. On that
F
issue the High Court held that the action taken either by respondent No. l
or by respondient No. 2 could not be said to be contrary to law or the
directions issued by this Court in the case of Ashish Handa (supra). Consequently the writ petition was dismissed. Hence, this appeal.
The High Court, in the impugned judgment, dealing with initiation of
G the process and consultation for appointment of respondent No. 3 as President of the State Commission, has observed, thus: -
"The counsel for the petitioners contended that appointment of a
H
2.
[1993] 4 sec 441.
SHRI ASHOK TANWAR v. STATE (PATIL, J.)
1073
person as President to the State Commission, as ruled by the SuA
preme Court in Ashish Handa, has to be made in accordance with
the provisions of Article 217 of the Constitution. In other word$,
before an appointment of a sitting or retired Judge of a High Court
is made as the President of the State Commission, there should be
consultation at three levels; firstly, consultation with the Chief B
Justice of India, secondly, consultation with the Governor of the
State and thirdly, consultation with the Chief Justice of the High
Court concerned.
xxx
xxx
xxx
xxx
Hence, ifthe submission of the learned counsel is upheld, the
result would be as under:
Before the appointment of respondent No. 3 by respondent
c
No. 1 as the President of the State Commission, respondent No. 1 D
ought to have consulted the Governor of the State (the State Government), (which is the appointing authority in the instant case), the ·
Chief Justice of India (not the Chief Justice of India in his individual capacity but collectively, along with the collegium), the
Chief Justice of this Court (not the Chief Justice in his individual
capacity, but with the collegium, that is, his two senior most colleagues) and also a Judge or Judges, who is1are in the Supreme
Court who is/are likely to be conversant with the affairs of this High
Court.
Unless the above procedure is strictly adhered to, the
appointment of respondent No. 3 as the President of the State
E
Commission cannot be held legal and lawful."
In relation to the law laid down by this Court in Ashish Handa the High
Court noted that it was not the case before the High Court that the Chief
Justice had consulted his two senior most colleagues before approving the
name of Justice Agnihotri and yet the appointment was not interfered with.
The High Court also expressed that in Ashish Handa this Court has laid
down that under Section 16 of the Act process for appointment of a sitting
or retired Judge as President of the State Commission should be initiated
by the Chief Justice as is done in the case of appointment of a Judge to a
High Cou1t under Article 217 of the Constitution and that such process
should not be initiated by the Government.
F
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SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
A
Before us, learned counsel for the appellants urged that: -
I.
B
2.
c
since the re~ommendation to appoint respondent No. 3 was made by
the Acting Chief Justice without consulting two senior most Judges as
required in the light of decisions of this Court in Supreme Court
Advocates-on-Record Association (supra) and Ashish Handa (supra),
the High Court ought to have allowed the writ petition and quashed
the appointment of respondent No. 3.
The Acting Chief Justice could not initiate the process for appointment
of respondent No. 3 under Section 16 of the Act as it is only the Chief
Justice, who is to be consulted; the Acting Chief Justice is not appointed to the 0ffice of Chief Justice, he is only to discharge the duties
of the Chief Justice. Reliance was placed on the decision of High Court
of Allahabad in Bishal Chand Jain v. Chattur Sen and others3•
In opposition learned counsel for the respondents in their
D arguments reiterated the submissions that were made before the High Court
and supported the impugned judgment for the very reasons stated therein.
E
F
G
The learned counsel for the Union of India and for Attorney General
submitted that consultation should be as stated in two-decisions of this Court
in Ashish Handa and Supreme Advocates-on-Record Association (supra),
i.e., the Chief Justice ofa High Court has to consult two senior most Judges
in the case of appointment of a sitting or retired Judge of the High Court
as President of the State Commission. As regards the discharge of duties
of the Chief Justice by the Acting Chief Justice, the submission was that the
Acting Chief Justice could perform all the functions of the Chief Justice by
virtue of Article 223 of the Constitution, otherwise there will be practical
difficulty leading to anomalous situation in cases where the Chief Justices
are not appointed for some reasons and Acting Chief Justices continue for
longer period.
Section 16 of the Act, to the extent relevant, reads: -
"16. Composition of the State Commission. - (1) Each State Commission shall consist of, -
(a) a person who is or has been a Judge of a High Court, appointed
H 3.
AIR (1967) All. 506.
SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1075
by the State Government, who shall be its President :
Provided that no appointment under this clause shall be made
except after consultation with the Chief Justice of the High Court."
A
In the case of Ashish Handa the question that came up for considB
eration was as to initiation of process in the matter of appointment. A
person, who is or has been a Judge of a High Court, shall be appointed by
the State Government as President of the State Commission after consultation with the Chief Justice of the High Court as per Section 16 of the Act.
This Court held that the executive is expected to approach the Chief Justice
when the appointment is to be made for taking the steps to initiate the C
proposal. Para 3 of the judgment reads: -
"3. The Consumer Protection Act, 1986 is an Act to provide for
better protection of the interests of consumers "and for that purpose
to make provision for the establishment of consumer councils and D
other authorities for the settlement of consumers' disputes and for
matters connected therewith". The National Commission, the State
Commission and the District Forum are established as the agencies
for the redressal of consumer disputes by Section 9 of the Act.
Section IO of the Act provides for composition of the District,
Forum, Section 16 for the State Commission and Section 20 for the E
National Commission. The scheme is that these three agencies
constituted for redressal of consumer disputes at different levels
have as its President a person who is, or has been a Judge at the
~corresponding level. This is so because the function of these agencies is primarily the adjudication of consumer disputes and, thereF
fore, a person from the judicial branch is considered to be suitable
for the office of the President. The appointment to the office of the
President of the State Commission is to be made "only after consultation with the Chief Justice of the High Court" and to the office
of the President of the National Commission "after consultation
with the Chief Justice of India". Such a provision requiring prior
consultation with the Chief Justice is obviously for the reason that
he is the most suitable person to know about the suitability of the
person to be appointed as the President of the Commission. The
provisions in Section 16(1)(a) for appointment of the President of
G
the State Commission and in Section 20(1 )(a) for appointment of H
A
B
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
the President of the National Commission are in pari materia and
have to be similarly construed. The construction of the proviso in
Section 16(1)(a) and that in Section 20(1)(a) must be the same
because of the identity of the language. The expression "after
consultation with the Chief Justice of the High Court" and "after
consultation with the Chief Justice of India" must be construed in
the same manner as the expression "after consultation with the
Chief Justice of India, ... the Chief Justice of the High Court" in
Article 2 I 7 of the Constitution of India made in Supreme Court
Advocates-on-Record Assn. v. Union of India, [I 993] 4 SCC 44 I].
Accordingly, the opinion of the Chief Justice of the High Court and
the requirement of consultation with him according to the proviso
in Section 16(1 )(a) must have the same status as that of the Chief
. Justice of the High Court in the appointment of a High Court Judge
under Article 2 I 7 of the Constitution of India; and the process of
appointment to the office of the President of the State Commission
must also be similar. It is unnecessary to restate the same which
is summarised in the majority opinion in theJudges-II case [1993]
4 SCC 44 I. This is necessary to maintain independence of the
judiciary and to avoid any possibility of a sitting or a retired Judge
depending on the executive for such an appointment. Our attention
was drawn to certain observations in Sarwan Singh Lamba v. Union
of India, [1995] 4 SCC 546: [1995] SCC (L&S) 546: (1995) 30
ATC 585, to suggest that the name for appointment to the Administrative Tribunal may be suggested even by the executive which
may have the effect of initiating the proposal. In the facts of that
case, substantial compliance of the requirement of approval by the
Chief Justice oflndia was found proved and, therefore, the appointments were upheld. The requirement of consultation with the Chief
Justice in the proviso to Section 16(l)(a) and Section 20(1)(a) of
the Consumer Protection Act being similai''to that in Article 217,
the principles enunciated in the majority opinion in the Judges-II
case must apply, as indicated earlier, even for initiating the proposal. The executive is expected to approach the Chief Justice when
the appointment is to be made for taking the steps to initiate the
proposal. and the procedure followed should be the same as for
appointment of a High Couti Judge. That would give greater credibility to the appointment made."
(emphasis supplied)
-
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SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1077
The aforementioned decision of this Court is to be read and understood A
on the facts and in the context in relation to initiation of the process for the
appointment of a sitting or retired Judge as the President of .the State
Commission. The High Court in the impugned judgment also states that the
judgment of this Court in Ashish Handa should not be understood or
construed as insisting upon to follow the same procedure, which has to be B
, followed for appointment of a Judge of a High Court under Article 217 of
the Constitution. If the judgment in Ashish Handa is to be read in the way
the appellants projected, it will lead to anomalous situation and further it
does not stand to reason.
The process of consultation envisaged under Section 16 of the Act can C
neither be equated to the constitutional requirement of consultation under
Article 217 of the Constitution oflndia in relation to appointment ofa Judge
of a High Court nor can it be placed on the same pedestal. Consultation
by the Chief Justice of the High Court with two senior most Judges in
selecting a suitable candidate for appointment as a Judge is for the purpose D
of selecting the best person to the high office of a Judge of the High Court
as a constitutional functionary. Consultation with the Chief Justice of the
High Court in terms of Section 16 of the Act is a statutory requirement. This
apart, the interpretation of a provision of the Constitution having regard to
various aspects serving the purpose and mandate of the Constitution by this
Court stands on a separate footing. A constitution unlike other statutes is
meant to be a durable instrument to serve through longer number of years,
i.e., ages without frequent revision. It is intended to serve the needs of the
day when it was enacted and also to meet needs of the changing conditions
of the future. This Court in R.C. Poudyal v. Union of India and Others4,
E
in paragraph 124, observed thus: -
F
"124. In judicial review of the vi res of the exercise of a constitutional power such as the one under Article 2, the significance and
importance of the political components of the decision deemed fit
by Parliament cannot be put out of consideration as long as the
conditions do not violate the constitutional fundamentals. In the
interpretation of a constitutional document, "words are but the
framework of concepts and concepts may change more than words
themselves". The significance of the change of the concepts them4.
[1944] Supp. 1 sec 324.
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
selves is vital and the constitutional issues are not solved by a mere
appeal to the meaning of the words without an acceptance of the
line of their growth.
It is aptly said that "the intention of a
Constitution is rathe:- to outline principles than to engrave details"."
B In the first B.N. Rau Memorial Lecture on 'Judicial Methods' M. Hidayatullah,
J. observed, "More freedom exists in the interpretation of the Constitution
than in the interpretation of ordinary laws. This is due to the fact that the
ordinary law is more often before courts, that there are always dicta of
judges readily available while in the domain of constitutional law there is
c
again and again novelty of situation and approach. Chief Justice Marshall
while deciding the celeberated Mc. Culloch v. Maryland (4 Wheaton 316,
407) made the pregnant remark- "We must never forget4Jhat it is the
constitution we are expounding"- meaning thereby that il is a question
of new meaning in new circumstances. Cardozo in his lectures aiso said:
"The great generalities of the Co1:1§j_itution have a content and a significance
D that vary from age to age." Chie.f Justice Marshall-in ·9'fc· Culloch v.
Maryland declared that the constitution was 'intended-,~endure for ages to
come, and consequently to be adapted.,t~/the vari~~rises of human
affairs .... ' In this regard it is worthwhtie .fo ·see t11{ o'tisfrations made in
E
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G
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.
4
·-
.
paragraphs 324 to 326 in Supreme Cour.t;.Advocites":on-Record As-sociation:-
"324. The case before us must be considered in the light of our
entire experience and not merely in that of what was said by the
Framers of the Constitution. While deciding the questions posed
before us we must cons Mer what is the judiciary today and not what
it was fifty years back. The Constitution has not only to be read in
the light of contemporary circumstances and values, it has to be
read in such a way that the circumstances and values vf the present
generation are given expression in its provisions. An eminent jurist
observed that "constitutional interpretation is as much a process of
creation as one of discovery.
" 325. It would be useful to quote hereunder a paragraph from the
judgment of Supreme Court of Canada in Hunter v. Southam Inc.
(1984] 2 SCR 145, 156 (Can) :
"It is clear that the meaning of 'unreasonable' cannot be
SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1079
determined by recourse to a dictionary, nor for that A -
matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially
different from that of construing a statute. A statute
defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, B
is drafted with an eye to the future. Its function is to
provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill
or a Charter of Rights, for the unremitting protection of
individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must,
therefore, be capable of groWth and development over
time to meet new social, political and historical realities
c
often unimagined by its framers. The judiciary is the
guardian of the Constitution and must, in interpreting its
provisions, bear these considerations in mind. Professor D
Paul Freund expressed this idea aptly when he admonished the American Courts 'not to read the provisions of
the Constitution like a last will and testament lest it
become one'."
326. The constitutional provisions cannot be cut down by technical
construction rather it has to be given liberal and meaningful interpretation. The ordinary rules and presumptions, brought in aid to
interpret the statutes, cannot be made applicable while interpreting
E
the provisions of the Constitution. In Minister of Home Affairs v.
Fisher, [I 979} 3 All ER 21 : [I 980) AC 319) dealing with Bermu- F
dian Constitution, Lord Wilberforce reiterated that a Constitution
is a document "sui generis, calling for principles of interpretation
of its own, suitable to its character"."
(emphasis supplied)
This Court in Ms. Aruna Roy and Others v. Union of India and G
Others5 recalled the famous words of the Chief Justice Holmes that
"spirit of law is not logic but it has been experience" and observed
that these words apply with greater force to constitutional law. In
5.
AIR(2002) SC 3176.
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
the same judgment this Court expressed that Constitution is a
permanent document framed by the people and has been accepted
by the people to govern them for all times to come and that the
words and expressions used in the Constitution, in that sense, have
no fixed meaning and must receive interpretation based on the
experience of the people in the course of working of the Constitution. The same thing cannot be said in relation to interpreting
the words and expressions in a statute.
Verma, J. (as he then was) speaking for the majority in the case of
Supreme Court Advocates-on-Records Association, in paragraph
433, has stated, thus: -
"433. It is with this perception that the nature of primacy, if any,
of the Chief Justice of India, in the present context, has to be
examined in the constitutional scheme. The hue of the word 'consultation', when the consultation is with the Chief Justice of India
as the head of the Indian Judiciary, for the purpose of composition
of higher judiciary, has to be distinguished from the colour and the
same word 'consultation' may take in the context of the executive
associated in that process to assist iY! the selection of the best
available material."
(emphasis supplied)
Pandian,J. in his concurring opinion in Supreme Court Advocates-onRecords Association aforementioned, with regard to meaning of the word
'consultation' has observed that the derivative meaning of the word in the
context depended not merely on its ordinary lexicon definition but greatly
F
upon its contents according to the circumstances and the time in which the
word or expression is used; therefore, in order to ascertain its colour and
content one must examine the context in which that word is used. In this
regard in paragraph 163 it is stated that: -
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"The word 'consultation' is used in the context of appointment
of Judges to the Supreme Court under Article 124(2) and to the
High Courts under Article 217(1). Though such a consultation is
not constitutionally required in the case of appointment of other
constitutional appointees, which we have indicated and itemized in
the proceeding part of this judgment."
(emphasis supplied)
SHRI ASHOK TANWAR v. STATE [PATIL, J.]
1081
Further, in paragraph 196 it is observed that in the background of the factual A
and legal position, meaning of the word 'consultation' cannot be confined
to its ordinary lexicon definition; its contents greatly vary according to the
circumstances and the context in which the word is used as in our Constitution. In paragraph 195 it. is stated that the consultation with the Chief
Justice of India by the President is relatable to the judiciary and not to any B
other service; in the process of various constitutional appointments, 'consultation' is required only to the judicial office in contrast to the other high
ranking constitutional offices.
It is thus clear that the expression 'consultation' used in Article 217 of the
Constitution oflndia in relation to appointment of High Court Judges cannot
be read in the same way into 'consultation' as contemplated under Section
16 of the Act in the light of what is stated above in the Supreme Court
Advocates-on-Record Association. The meaning of the word 'consultation'
c
must be given in the context of an enactment. If the argument that the
consultation process in regard to appointment of a Judge or retired Judge D
of High Court to the State Commission under Section 16 must be in the same
manner as required under Article 217 of the Constitution, it will lead to
anomalous situation. Under Article 217(1) of the Constitution, consultation
contemplated with constitutional functionaries mentioned therein is for the
purpose of appointment of a Judge of a High Court and not for appointment E
of a person as the President of the State Commission under Section 16 of
the Act. If the consultation to be made for appointment of a person as
President of the State Commission, as required under Section 16 of the Act,
is to be similar as under Article 217 of the Constitution, then, even in case
of appointment of a retired Judge as President of the State Commission, such
consultation has to be made with all constitutional functionaries, which does
not stand to reason. Hence, obviously for appointment of a person as
President of the State Commission consultation as required under Article
217 of the Constitution as against the requirement stated in Section 16 of
F
the Act is not necessary. If that be so not only opinion of two senior most
Judges of the High Court should be obtained but also the consultation should G
be made with other constitutional functionaries as contemplated under Article
217 of the Constitution including the Chief Justice of India. Hence insistence on 'consultation' by the Chief Justice of a High Court with his two
senior most colleagues in the High Court for the purpose of Section 16 of
the Act, in our view, is unwarranted.
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1082
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
While dealing with the question of primacy of the opinion of the Chief
Justice of India in that context this Court held that such opinion of Chief
Justice is to be formed collectively after taking into account the views of
his senior colleagues, who are required to be consulted by him for the
formation of his opinion.