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

- **Citation:** [1993] Supp. 2 S.C.R. 659
- **Court:** Supreme Court of India
- **Decided:** 1993-10-06
- **Case number:** Writ Petition No. 1303 of 1987
- **Bench:** S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N Ray, Dr. As. Anand, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-advocates-on-record-association-and-anr-etc-v-union-of-india-12215
- **Pages:** 347

## Headnote

A
B
Constitution of India,. 1950 : Articles 124 and 217-Appointment of C
Judges of Supreme Court and High Courts--<::onsultation with the Chief Justice of India-Expression 'after consultation with'-Meaning of-Opinion of
the Chief Justice of India-Whether should have primacy over Executive
opinion-Norms to be followed in this regard laid down-Appointment of
Judges of Supreme Court-Doctrine of legitimate expectation-Applicability D
of
Article 222-Transfer of High Court Judges/Chief Justices-Role and
responsibility of the Chief justice of India-Opinion of the Chief Justice of
India-Whether prima-Consent of the Judge/Chief Justice to be trans/em~
whether require~Transfer-Nature of-After initial transfer, whether subE
sequent transfer could be made-Transfer Policy-Justiciability of-Norms to
be observed.
Article 21~Strength of Judges-Fixation of-Justiciability of-Extent
and scope of judicial review-Periodical review-Need for.
Articles 124(2), 2170) and 222(1}-Appointment of Judges of Supreme
Court and High Courts-Transfer of Judges/Chief Justices of High
Courts-President's consultation process with the Chief Justice of
India-Position and role of the Chief Justice of India-Whether primacy to
F
be given to opinion of Cf I-Nature and relevance of independence of judiciary G
and separation of judiciary in this regar~'Consultation'-Meaning and nature of-Contextual meaning-Consultation-Whether mandatory-Non- observance--Eff ect Of-Nature and extent of justiciability of these
matters-'President and Governor' in the context of appointment of Judges of
Supreme Court and High Courts and transfer of Judges/Chief Justices of High
Courts-Whether mean Central and State Governments-Opinion of H
659
660
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
CJI-Whether includes Opinion of his colleagues-Expression 'opinion of
judiciary as symbolized by the views of the Chief Justice of lndia'-Meaning
of
Articles 124(2) and 217(1)-Conventions-When could be read into
constitutional provisions-When acquire binding force of constitutional
B Law-Conventions regarding primacy to judiciary in the matter of appointment of Judges of superior courts and initiation of proposals for appointment-Existence of and recognition to.
Article 124(2) and 217(1)-Appointment of Chief Justice of India/High
Court-Procedure prescribed for appointment of Judges-Whether includes
C Chief Justice of India/High Court-'Judge'-Meaning of-·Whether includes
Chief Justice of India/High Court-Convention as to senionnost puisne Judge
being appointed as Chief Justice of India-Whether exists.
Article 141-Judgment of Supreme Court-Reconsideration of-When
D can be done-Necessary conditions for reconsideration-Stare decisi~ele
vance of, in constitutional cases-Judicial activitism---L,imils of
E
Articles 32 and 226-Judicial review-Grounds for-Scope and extent
of judicial review-Non-observance of public duty-Whether mandamus
could be issued even if the duty is discretionary.
Article 5()-{ndependence of judiciary-concept of-Whether secured
by constitutional security of tenure of office, immovability from office and
guarantees of service conditions, pensions, etc.--{)octrine of separation of
powers--relevance of in the context of appointment of Judges of the Supreme
Court and High Court Judges-Expression 'State'-Meaning of-Giving abF
solute supremacy to the Council of Ministers in selection and appointment of
Judges of Supreme Court and High Courts-Whether contrary to independence of judiciary.
Articles 74(1) and 163(1)-0pinion given by the Council of Ministers-Nature of-Whether President/Governor bound by the advice rendered
G on reconsideration.
Article 224-Appointment of additional and acting Judges-Whether
could be made without the requirement of consultation.
Article 233(1)-Appointment of District Judges-Whether consultation
H is with the entire body of Judges constituting the High Court or with a Single
'
ADVOCATES ASSN. v. U.O.I.
661
individual like the Chief Justice of the High Court-Consultati

## Text

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SUPREME COURT ADVOCATES-ON-RECORD
ASSOCIATION AND ANR. ETC.
v.
UNION OF INDIA
OCTOBER 6, 1993
[S. RATNAVEL PANDIAN, A.M. AHMADI, KULDIP SINGH,
J.S. VERMA, M.M. PUNCHHI, YOGESHWAR DAYAL,
G.N RAY, DR. AS. ANAND AND S.P. BHARUCHA, JJ.]
A
B
Constitution of India,. 1950 : Articles 124 and 217-Appointment of C
Judges of Supreme Court and High Courts--<::onsultation with the Chief Justice of India-Expression 'after consultation with'-Meaning of-Opinion of
the Chief Justice of India-Whether should have primacy over Executive
opinion-Norms to be followed in this regard laid down-Appointment of
Judges of Supreme Court-Doctrine of legitimate expectation-Applicability D
of
Article 222-Transfer of High Court Judges/Chief Justices-Role and
responsibility of the Chief justice of India-Opinion of the Chief Justice of
India-Whether prima-Consent of the Judge/Chief Justice to be trans/em~
whether require~Transfer-Nature of-After initial transfer, whether subE
sequent transfer could be made-Transfer Policy-Justiciability of-Norms to
be observed.
Article 21~Strength of Judges-Fixation of-Justiciability of-Extent
and scope of judicial review-Periodical review-Need for.
Articles 124(2), 2170) and 222(1}-Appointment of Judges of Supreme
Court and High Courts-Transfer of Judges/Chief Justices of High
Courts-President's consultation process with the Chief Justice of
India-Position and role of the Chief Justice of India-Whether primacy to
F
be given to opinion of Cf I-Nature and relevance of independence of judiciary G
and separation of judiciary in this regar~'Consultation'-Meaning and nature of-Contextual meaning-Consultation-Whether mandatory-Non- observance--Eff ect Of-Nature and extent of justiciability of these
matters-'President and Governor' in the context of appointment of Judges of
Supreme Court and High Courts and transfer of Judges/Chief Justices of High
Courts-Whether mean Central and State Governments-Opinion of H
659
660
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
CJI-Whether includes Opinion of his colleagues-Expression 'opinion of
judiciary as symbolized by the views of the Chief Justice of lndia'-Meaning
of
Articles 124(2) and 217(1)-Conventions-When could be read into
constitutional provisions-When acquire binding force of constitutional
B Law-Conventions regarding primacy to judiciary in the matter of appointment of Judges of superior courts and initiation of proposals for appointment-Existence of and recognition to.
Article 124(2) and 217(1)-Appointment of Chief Justice of India/High
Court-Procedure prescribed for appointment of Judges-Whether includes
C Chief Justice of India/High Court-'Judge'-Meaning of-·Whether includes
Chief Justice of India/High Court-Convention as to senionnost puisne Judge
being appointed as Chief Justice of India-Whether exists.
Article 141-Judgment of Supreme Court-Reconsideration of-When
D can be done-Necessary conditions for reconsideration-Stare decisi~ele
vance of, in constitutional cases-Judicial activitism---L,imils of
E
Articles 32 and 226-Judicial review-Grounds for-Scope and extent
of judicial review-Non-observance of public duty-Whether mandamus
could be issued even if the duty is discretionary.
Article 5()-{ndependence of judiciary-concept of-Whether secured
by constitutional security of tenure of office, immovability from office and
guarantees of service conditions, pensions, etc.--{)octrine of separation of
powers--relevance of in the context of appointment of Judges of the Supreme
Court and High Court Judges-Expression 'State'-Meaning of-Giving abF
solute supremacy to the Council of Ministers in selection and appointment of
Judges of Supreme Court and High Courts-Whether contrary to independence of judiciary.
Articles 74(1) and 163(1)-0pinion given by the Council of Ministers-Nature of-Whether President/Governor bound by the advice rendered
G on reconsideration.
Article 224-Appointment of additional and acting Judges-Whether
could be made without the requirement of consultation.
Article 233(1)-Appointment of District Judges-Whether consultation
H is with the entire body of Judges constituting the High Court or with a Single
'
ADVOCATES ASSN. v. U.O.I.
661
individual like the Chief Justice of the High Court-Consultation with A
and/recommendation of the High Court-Whether a condition precedent to
the exercise of power by the Governor of the State-Whether such consultation
must be complete and meaningful and purposeful.
Article 235-Subordinate Judiciary-Independence of-Whether
secured by placing it within High Court's control.
Interpretation of the Constitution-Principles of-Liberal interpretation
B
to meet requirement of ever-changing society-Limits of-Stretching the meaning-Cannot extend to breaking it or re-writing it-Constitutional Assembly
Debates-Whether could aid to constructiott-Reliance on the Debates vis-aC
vis the experience gained in working of the Constitution-Ordinary mies of
interpretation-Whether could be applied in construing constitutional
provisions-Where language is plain and unambiguous-Whether it should be
given effect to-Judiciary-Role of-Whether could go into question of what
the law ought to be or should it confine itself to interpret the relevant
constitutional provisions as they stand in their red spirit and objections D
without straining them.
Words and Phrases: Expression 'Consultation'-Meaning of in common parlance.
On a Writ Petition filed in Public Interest seeking issuance of a
mandamus to the Union of India for filling up the vacancies of Judges in
th Supreme Court and several High Courts, this Court passed an order
on 26th October, 1990 Subhash Sharma & Ors. v .. Union of India, [1990)
Supp. SCR 433 directing that the said Writ petition and the matters
connected therewith, viz., Writ Petition filed by the Supreme Court Advocates-on-Record Association and another Writ petition filed by a Senior
Advocate, be referred to a larger Bench for reconsidering the correctness
of the majority view in S.P. Gupta & Ors. etc. etc. v. Union of India and Ors.
etc. etc., [1982) 2 SCR 365. Accordingly, these matters were referred to a
nine-Judges Bench.
In S.P. Gupta, the majority of the Judges took th_e view that the
opinion of the Chief Justice of India did not have primacy in the matter
E
F
G
of appointments of Judges of the Supreme Court and the High Courts,
that the primacy was with the Central Government, which was to take the
decision after consulting all the Constitutional functionaries and the H
662
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A
Central Government was not bound to act in accordance with the opinion
of all the Constitutional functionaries consulted, even if their opinion be
identical, that for initiation of the proposal for appointment of a judge of
the Supreme Court or a High Court, there could not be a blanket embargo
on the executive to initiate the proposal for appointment of a Judge of
B
c
Court ()r High Court even though it would be appropriate that the
executive's right to initiate an appointment should be limited to suggesting
appropriate names to the Chief justice of the High Court or the Chief
Justice of India. It was also held that the Mater regarding appointment of
adequate number of Judges was non-justiciable and, therefore, could not
be enforced by the Court.
On behalf of the Writ Petitioners it was contended that (1) the role
of the Chief justice of India in the matter of appointments to the Supreme
Court and the High Courts and transfers of the High Court Judges and
Chief Justices had primacy, with the executive having the role of merely
D n.aking the appointments and transfers in accordance with the opinion of
the Chief Justice of India; (2) fixation of the Judge-strength under Article
216 was justiciable; (3) there was primacy of the role of the Chief Justice
of India in th~ process of appointment, which was an integrated process.
E
F
On behalf of Union of India, it was urged that the majority opinion
in S.P. Gupta, should be affirmed and contended that there was no occasion to take a different view, more so when, in spite of that decision, in
the actual working, the Government of India gave the greatest weight to
the opinion of the chief Justice of India, and except on rare occasions,
appointments had been made only in accordance with the opinion of the
Chief Justice of India; that the Constituent Assembly debates showed that
the plea for primacy of the Chief justice of India, or the requirement of
his concurrence in making the appointments, was considered a.nd expressly discarded while drafting the Constitution, that the several provisions in
the Constitution relating to the oath of office; fixity of tenure; restriction
G against alteration of conditions of service to the detriment of the Judges
after their appointment; salaries and pensions being charged on the
Consolidated Fund; restriction on discussion of their conduct in the
legislature; power to punish for contempt; and open hearing in courts were
sufficie~t safeguards for the independence of the judiciary and, therefore,
no further exclusion of the executive's rule in the process of appointment
H of judges was conten1plated.
ADVOCATES ASSN. v. U.O.L
663
The Union of India also contended that barring a few exceptions, all A
appointments to the superior judiciary were made only in accordance with
the opinion of the Chief Justice oflndia, notwithstanding the majority view
in S.P. Gupta. And that in the actual working of this process, even the
executive attached primacy to the role of the Chief Justice of India in the
matter of appointments to the superior judiciary notwithstanding the B
decision in S.P. Gupta that the primacy was with the Government of India
and not in the Chief Justice of India.
On behalf of States of Sikkim and Madhya Pradesh it was contended
that the primacy was in the executive, and the majority opinion in S.P.
Gupta was correct, and did not require reconsideration.
The State of Karnataka urged'reconsideration of the majority view
in S.P. Gupta on the ground that opinion of Chief justice of India must
prevail and it should be given primacy over the executive opinion.
Disposing of the matters, this Court
HELD:
By the Coutt:
c
D
1. The process of appointment of Judges to the Supreme Court and E
the High Courts is an integrated 'participatory consultative process' for
selecting the best and most suitable persons available for appointment;
and all the Constitutional functionaries must perform this duty collectively
with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. [777-E]
2. Initiation o,f the proposal for appointment in the case of the
Supreme Court must be by the Chief Justice of India, and in the case of a
High Court by the Chief Justice of that High Court, and for transfer of a
Judge/Chief Justice of a High Court, the proposal has to be initiated by
F
the Chief Justice of India. This is the manner in which proposals for G
appointments to the Supreme Court and the High Courts as well as for
the transfers of Judges/Chief Justices of the High Courts must invariably
be made. [777-F-G]
3. In the event of conflicting op1mons by the Constitutional
functionaries, the opinion of the judiciary 'symbolised by the view of the H
664
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
Chief Justice of India', and formed in the manner indicated, has primacy.
(777-H]
B
4. No appointment of any Judge to the Supreme Court or any High
Court can be made, unless it is in conformity with the opinion of the Chief
Justice of India. (778-A]
5. In exceptional cases alone, for stated strong cogent reasons,
disclosed to the Chief Justice of India, indicating that the recommendee is
not suitable for a:ipointment, that appointment recommended by the Chief
Justice of India may not be made. However, if the stated reasons are not
accepted by the Chief Justice of India and the other judges of the Supreme
C Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made
as a healthy convention. (778-8-C]
6. Appointment to the office of the Chief Justice of India should be
D of the seniormost Judge of the Supreme Court considered fit to hold the
office. (778-D]
E
7. The opinion of the Chief justice of India has not mere primacy,
but is determinative in the matter of transfers of High Court Judges/Chief
Justices. (778-D]
8. Consent of the transferred Judge/Chief Justice is not required for
either the first of any subsequent transfer from one High Court to another.
(778-E]
9. Any transfer made on the recommendation of the Chief Justice of
F
India is not to be deemed to be punitive, and such transfer is not
justiciable on any ground. [778-E-F]
10. In making all appointments and transfers, the norms indicated
must be followed. However, the same do not confer any justiciable right in
G any one. [778-F]
11. Only limited judicial review on the grounds specified herein is
available in matters of appointments and transfers. [778-G]
12. The initial appointment of a Judge can be made to a High Court
H other than that for which the proposal was initiated . (778-G-H]
ADVOCATES ASSN. v. U.O.I.
665
13. Fixation of judge-strength in the High Courts is justiciable, but A
only to the extent and in the manner indicated. [778-H]
14. The majority opinion in S.P. Gupta v.Union of India, [1982) 2
SCR 365, in so far as it takes the contrary view relating to primacy of the
role of the Chief Justice of India in matters of appointments and transfers
and the justiciability of these matters as well as in relation to Judgestrength, does not commend itself to this Court as being the correct view.
The relevant provisions of the Constitution, including the constitutional
scheme must now be construed, understood and implemented in the
manner indicated herein. [779-A-B]
Per Venna J. for himself, Dayal, Ray, Anand and Bhamcha, JJ.
1.1. The question of primacy of the role of the Chief Justice of India
B
c
in the context of appointment of judges in the Supreme Court and the High
Courts must be considered in the backdrop of Rule of Law and the broall
scheme of separation of powers, for the proper picture of the constitutional D
scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the
Supreme Court and the High Courts, so essential to ensure the independence of the judiciary and, thereby, to preserve democracy. A fortiori
any construction of the constitutional provisions which conflicts with this E
constitutional purpose or negates the avowed object has to be eschewed
being opposed to the true meaning and spirit of the Constitution and,
therefore, an alien concept. [741-F-G, 750-A-B]
1.2. The appointment of superior Judges is from amongst persons
of mature age with known background and reputation in the legal profesF
sion. By that time the personality is fully developed and the propensities
and background of the appointee are well known. The collective wisdom of
the constitutional functionaries involved in the process of appointing
superior Judges is expected to ensure that persons of unimpeachable
integrity alone are appointed to these high offices and no doubtful persons G
gain entry. [747-H & 748-A-B]
1.3. The hue of the word 'consultation', 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
the same word 'consultation' may take in the context of the executive asH
666
SUPREME COURT REPORTS [1993) SUPP. 2 S.CR
A sociated in that process to assist in the selection of the best available
material. [749-A, BJ
B
c
D
E
1.4 The primacy of one Constitutional functionary qua the others,
who together participate in the performance of this function assumes sig·
nificance only when they cannot reach an agreed conclusion. The debate is
academic, when a decision is reached by agreement taking into account the
opinion of every one participating together in the process, as primarily
intended. The situation of a difference at the end, raising the question of
primacy is best avoided by each constitutional functionary remembering
that all of them are participants in a joint venture, the aim of which is to
find out and select the most suitable candidate for appointment, after
assessing the comparative merit of all those available. This exercise must
be performed as a pious duty to discharge the constitutional obligation
imposed collectively on the highest functionaries drawn from the executive
and the judiciary, in view of the great significance of these appointments.
[752-E-G]
1.5. The common purpose to be achieved, points in the direction that
emphasis has to be on the importance of the purpose and not on the
comparative importance of the participants working together to achieve the
purpose. Attention has to be focussed on the purpose, to enable better
appreciation of the significance of the role of each participant, with the
consciousness that each of them has some inherent limitation, and it is only
collectively that they constitute the selector. [752-G-H; 753-A]
1.6. The discharge of the assigned role by each Constitutional func·
tionary, viewed in the context of the obligation of each to achieve the
common constitutional purpose in the joint venture will help to transcend
F
the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the
question of primacy would arise to avoid stalemate. F'or this reason, it must
be seen who is best equipped and likely to be more correct in his view for
achieving the purpose and performing the task satisfactorily. In other,
G words, primacy should be in him who qualifies to be treated as the 'expert'
in the field. Comparatively greater weight to his opinion may then be
attached. [753-B-D]
1.7. This perception in all the constitutional functionaries associated
in the integrated participatory consultative process to achieve the avowed
H common purpose should ordinarily prevent the situation when the question
..
ADVOCATES ASSN. v. U.O.I.
667
of primacy arises; and in the exceptional cases when it does arises, the A
functionary having primacy would do well to respect the viewpoint of others
and recall that it implies the carrying by him of a greater burden. This will
ensure better performance of the role with primacy, in the proper spirit, and
will make it easier for the others to accept the primacy. [753-D-F]
1.8. The appointment of Judges to the Supreme Court and the High
Courts is made by the President and is, therefore, ultimately an executive
B
act. Article 74(1) clearly provides, and the proviso inserted therein by the
Constitution (Forty forth Amendment) Act,1978 reinforces, that the President, in exercise of his function, shall act in accordance with the advice
tendered by the Council of Ministers. if Articles 124(2) and 217 (1) provided C
for appointments of Judges by the President without obligatory consultation with the functionaries specified therein, then, by virtue of the full
effect of Article 74, there W!mld be no room for any controversy that the
appointments were not to be made by the executive in its absolute discretion. [753-F-H; 754-A]
D
1.9. It was realised at the time of framing of the Constitution that
the independence of the judiciary had to be safeguarded not merely by
providing security of tenure and other conditions of service after the
appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the E
executive as the appointing authority. It is this reason which impelled the
incorporation of the obligation of consultation with the Chief Justice of
India and the Chief Justice of the High Court in Articles 124(2) and 217(1).
The Constituent Assembly Debates disclose this purpose in prescribing for
such consultation, even though the appointment is ultimately an executive
act. [756-B-D]
F
1.10. The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India
vis-a-vis the opinion of the other consultees and the Central Government.
The majority view in S.P. Gupta's case conflicts with this constitutional G
scheme and is not a correct construction of the provisions in Articles 124(2)
and 217(1). [756-G-H; 757-A]
S.P. Gupta v. Union of India, [1982] 2 S.C.R. 315, partly over-ruled.
1.11. The provision for consultation with the Chief Justice of India H
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A and, in the case of the High Courts, with the Chief Justice of the High Court
was introduced because of the realisation that the Chief Justice is best
equipped to know and assess the worth of the candidate, and his suitability
for appointment as a superior judge, and it was also necessary to eliminate
political influence even at the stage of the initial appointment of a Judge,
B
since the provisions for securing his independence after appointment were
alone not sufficient for an independence judiciary. At the same time, the
phraseology used indicated that giving absolute discretion or the power of
veto to the Chief Justice of India as an individual in the matter of appoint·
ments was not considered desirable, so that there should remain some
power with the executive to be exercised as a check, whenever necessary. The
c indication is, that in the choice of a candidate suitable for appointment, the
opinion of the Chief Justice of India should have the greatest weight, the
selection should be made as a result of a participatory consultative process
in which the executive should have power to act as a mere check on the
exercise of power by the Chief Justice of India, to achieve the constitutional
purpose. Thus, the executive element in the appointment process is reduced
D to the minimum and any political influence is eliminated. It was for this
reason that the word 'consultation' instead of 'concurrence' was used, but
that was done merely to indicate that absolute discretion was not given to
any one, not even to the Chief Justice of India as an individual, much less
to the executive, which earlier had absolute discretion under the GovernE
ment of India Acts. [757-E-H; 758-A-B]
F
1.12. The primary aim must be to reach an agreed decision taking
into account the views of all the consultees, giving the greatest weight to the
opinion of the Chief Justice of India who is best suited to know the worth
of the appointee. No question of primacy would arise when the decision is
reached in this manner by consensus, without any difference of opinion.
However, if conflicting opinions emerge at the end of the process, then only
the question of giving primacy to the opinion of any of the consultees arises.
Primacy to the executive is negatived by the historical change and the
nature of functions required to be performed by each.·The primacy mu_st,
G therefore, lie in the final opinion of the Chief Justice of India, unless for
very good reasons known to the executive and disclosed to the Chief Justice
of India, that appointment is not considered to be suitable. [758-C-E]
Commonwealth Law Bulletin, Vol.18 No. 4, October [1992) p. 1257,
H referred to.
'-.
1
ADVOCATES ASSN. v. U.O.I.
669
1.13. The reason given by the majority in S.P. Gupta for its view that A
the executive should have primacy, since it is accountable to the people
while the judiciary has no such accountability, does not withstand scrutiny,
and is also not in accord with the existing practice and the perception even
of the executive. In actual practice, the real accountability in the matter of
appointments of superior Judges is of the Chief justice of India and the B
Chief Justice of the High Court, and not of the executive, which has always
held out that, except for rare instances, the executive is guided in the
matter of appointments by the opinion of the Chief Justice of India.
However, the primacy of the opinion of the Chief Justice of India in this
context is, in effect, primacy of the opinion of the Chief Justice of India
formed collectively, that is to say, after taking into account the views of his C
senior colleagues who are required to be consulted by him for the formation of his opinion. [759-D-E-H; 760-A-D]
S.P. Gupta v. Union of India, [1982) 2 S.C.R. 365, overruled.
1.14. In view of the provision in Article 74(1), the expression
'President' in Articles 124(2) and 217(1) means the President acting in
accordance with the advice of the council of Ministers with the Prime
Minister at the head, and the advice given by the Council of Ministers has
D
to accord with the mandate in the Constitution. Thus, in the matter of
appointments of Judges of the superior judiciary, the interaction and E
harmonisation of Article 74(1) with Articles 124(2) and 217(1) has to be
borne in mind, to serve the constitutional purposes. In short, in the matter
of appointments of Judges of the superior judiciary, the constitutional
requirement is, that the President is to act in accordance with the advice
of the Council of Ministers as provided in Article 74(1), and the advice of F
the Council of Ministers is to be given in accordance with Articles 124(2)
and 217(1), as construed by this Court. In this sphere, Article 74(1) is
circumscribed by the requirement of Articles 124(2) and 217(1), and all of
them have to be read together. This view also accords with the provisions
in the Constitution pertaining to the removal from office of Judge of the
Supreme Court and the High Court. [760-E-H; 761-A-B]
G
1.15 Providing for the role of the judiciary as well as the executive in
the integrated process of appointment merely indicates, that it is a participatory consultative process, and the purpose is best served if at the end
of an effective consultative process between all the consultees the decision H
670
SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A
is reached by consensus, and no question arises of giving primacy to any
consultee. Primarily, it is this indication which is given by the constitutional provisions, and the constitutional purpose would be best served if the
decision is made by consensus without the need of giving primacy to any
one of the consultees on account of any difference remaining between them.
B The question of primacy of the opinion of any one of the constitutional
functionaries qua the others would arise only if the resultant of the
consultative process is not one opinion reached by consensus.
[761·G·H; 762·A]
1.16. Since the constitutional purpose to be served by these
C provisions is to select the best from amongst those available for appoint·
ment as judges of the superior judiciary, after consultation with those
functionaries who are best suited to make the selection, only those persons
should be considered fit for appointment as Judges of the superior
judiciary who combine the attributes essential for making an able, independent and fearless Judge. Several attributes together combine to con·
D stitute such a personality. Legal expertise, ability to handle cases, proper
personal conduct and ethical behaviour, firmness and fearlessness are
obvious essential attributes of a _person suitable for appointment as a
superior Judge. The object of selecting the best men to constitute the
superior judiciary is achieved by requiring consultation with not only the
E judiciary but also the executive to ensure that every relevant particular.
about the candidate is known and duly weighed as a result of effective
consultation between all the consultees before the appointment is made. It
is the role assigned to the judiciary and the executive in the process of
appointment of Judges which is the true index for deciding the question of
F
primacy between them, in case of any difference in their opinion. The
answer which best subserves this constitutional purpose would be the
correct answer. The judiciary being best suited and having the best oppor·
tunity to assess the true worth of the candidates, the constitutional pur·
pose of selecting the best available men for appointment as superior
Judges is best served by ascribing to the judiciary, as a consultee, a more
G significant role in _the process of appointment. The only question is of the
extent of such significance and the true meaning of the primacy of the role
of the Chief Justice of India in this context. [762-B-H, 763-A·B]
Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985] 4 S.C.C.
H 417, relied on.
ADVOCATES ASSN. v. U.O.I.
671
S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to.
A
2.1 The principle of non-arbitrariness which is an essential attribute
of the rule of law is all pervasive throughout the Constitution, as an adjunct
of this principle is the absence of absolute power in one individual in any
sphere of constitutional activity. The possibility of intrusion of arbitrariB
ness has to be kept in view, and eschewed, in constitutional interpretation
and, therefore, the meaning of the opinion of the Chief Justice of India, in
the context of primacy, must be ascertained. A homogenous mixture, which
accords with the constitutional purpose and its ethos, indicates that it is
the opinion of the judiciary 'symbolised by the view of the Chief Justice of
India' which is given greater significance or primacy in the matter of C
appointments. In other words, the view of the Chief Justice oflndia is to be
expressed in the consultative process as truly reflective of the opinion of
the judiciary, which means that it must necessarily have the element of
plurality in its formation. In actual practice, this is how the Chief Justice
of India does, and is expected to function, so that the final opinion exD
pressed by him is not merely his individual opinion, but the collective
opinion formed after taking into account the view of some other Judges who
are traditionally associated with this function. The modality for achieving
this purpose, is found from the reference to the office of the Chief Justicf
of India, which has been named for achieving this object in a pragmatic
manμer. The opinion of the judiciary symbolised by the view of the Chief E
Justice oflndia', iii to be obtained byronliu.ltation with the Chief Justice of
India, and it is this opinion which has primacy. [764-D-H; 765-A]
2.2. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines· to F
ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon his functionaries and, whenever
feasible, introducing the element of plurality by requirieg a collective
decision, are further checks against arbitrariness. This is how idealism and
pragmatism are reconciled and integrated, to make the system workable in
a satisfactory manner. Entrustment of the task of appointment of superior G
Judges to high constitutional functionaries, the greatest significance attached to the view of the Chief Justice of India, who is best equipped to
assess the true worth of the candidates for adjudging their suitability, the
opinion of the Chief Justice of India being the collective opinion formed
after taking into account the views of some of his colleagues; and the H
672
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A executive being permitted to prevent an appointment considered to be
unsuitable, for strong reasons disclosed to the Chief Justice of India,
provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon
either the judiciary or the executive, much less in any individual, be he the
B Chief Justice of India or the Prime Minister. [765-A-D]
3.1. Every power vested in a public authority is to subserve a public
purpose, and must invariably be exercised to promote public interest. This
guideline is inherent in every such provision, and so also in Article 222.
The provision requiring exercise of this power by the President only after
C consultation with the Chief Justice of India, and the absence of the
requirement of consultation with any other functionary, is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice' of
India's opinion in this matter. [765-F-G]
Union of India v. Sankal Chand Himatlal Sheth and Anr., [1978) 1
D S.C.R. 423 and S.P. Gupta and Ors. Etc. Etc. v. Union of India & Ors. etc.
etc., [1982) 2 S.C.R. 365, relied on.
3.2. The initiation of the proposal for the transfer of a Judge/Chief
Justice should be by the Chief Justice of India alone. This requirement in
E the case of a transfer is greater, since consultation with the Chief Justice
of India alone is prescribed. [766-A-B]
F
G
3.3. The power of transfer can be exercised only in 'public interest'
i.e. for promoting better administration of justice throughout the country.
After adoption of the transfer policy, and with the clear provision for
transfer in Article 222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an
erosion in the independence of judiciary. If the transfer of a Judge on
appointment as Chief Justice is not punitive, there is no occasion to treat
the transfer of any other Judge as punitive. [766-C-F]
3.4. The power under Article 222 is available throughout the tenure
of a High Court Judge/Chief Justice, and it is not exhausted after the first
transfer is made. The contrary view in S.P. Gupta has no basis in the
Constitution. It is reasonable to assume that the Chief Justice of India will
recommend a subsequent transfer only in public interest, for prompting
H better administration of justice throughout the country, or the request of
ADVOCATES ASSN. v. U.O.I.
673
the concerned Judge. A transfer made in accordance with the recommenA
dation of the Chief Justice of India, is not justiciable. [766-G-H; 767-A-B]
S.P. Gupta v. Union of India, [1982] 2 S.C.ll. 365, held inapplicable.
3.5. Promotion of public interest by proper functioning of the High
Courts and, for that reason, the transfer of any Judge/Chief Justice from B
One High Court to another must be the lodestar for the performance of
this duty enjoined on the Chief Justice of India, as the head of the Indian
Judiciary. Suitable norms, including those indicated herein, must be followed by the Chief Justice of India, for his guidance, while dealing with
individual cases. [767-B-C] .
C
4.1. The primacy of the judiciary in the matter of appointments and
its determinative nature in transfers introduces the judicial element in the
process, and is itself a sufficient justification for the absence of the need
for further judicial review of those decision, which is ordinarily needed as
a check against possible executive excess or arbitrariness. Plurality of D
Judges in the formation of the opinion of the Chief Justice of India, is
another in built check against the likelihood of arbitrariness or bias, even
sub-conciously, of any individual. The judicial element being predominant
in the case of appointments, and decisive in transfers, the need for further
judicial review, as in other executive actions, is eliminated. The reduction E
of the area of discretion to the minimum, the element of plurality of Judges
in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion
are sufficient checks against arbitrariness. [775-B-E]
4.2 The guidelines in the form of norms, are not to be construed as F
conferring any justiciable right in the transferred Judge. Apart from the
constitutional requirement of a transfer being made only on the recommendation ~f the Chief Justice of India, the issue of transfer is not
justiciable on any other ground, including the reasons for the transfer or
their sufficiency. The opinion of the Chief Justice of India formed in the G
manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the
judiciary. [775-E-F]
4.3. This is also in accord with the public interest of excluding these
appointments and transfers from litigative debate, to avoid any erosion in H
674
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.J:<..
A the credibility of the decisions, and to ensure a free and frank expression
of honest opinion by all the constitutional functionaries, which is essential
for effective consultation and for taking the right decision. [775-G]
B
5. There is a growing tendency of needless intrusion by strangers and
busy-bodies in the functioning of the judiciary under the garb of public
interest litigation. Except on the ground of want of consultation with the
named constitutional functionaries or lack of any condition of eligibility
in the case of an appointment, or of a transfer being made without the
recommendation of the Chief Justice of India, these matters are not
justiciable on any other ground, including that of bias, which in 'any case
C is excluded by the element of plurality in the process of decision making.
[775-G-H; 776-A-B]
D
E
Raj Kanwar, Advocate v. Union of India andAnr. [1992] 4 S.C.C. 605,
referred to.
6.l. Article 216 which deals with constitution of High Courts,
provides that every High Court shall consist of a Chief Justice and 'such
other Judges as the President may from time to time deem it necessary to
appoint'. To enable proper exercise of this function of appointment of
'other Judges', 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 and expected future filing. This is
essential to ensure speedy disposal of cases. to 'secure that the operation
of the legal system promotes justice' • a directive principle 'fundamental
in the governance of the country' which, it is the duty of the State to observe
in all its action, and to make meaningful the guarantee of fundamental
rights in Part Ill of the Constitution. Accordingly, the failure to perform
this obligation, resulting in negation of the rule of law by the laws' delay
must be justiciable to compel performance of duty. [776-C-F]
6.2. Accordingly, fixation of Judge strength in a High Court is
justiciable; and if it is shown that the existing strength is inadequate to
G provide speedy justice to the people - speedy trial being a requirement of
Article 21 - in spite of the optimum efficiency of the existing strength, a
direction can be issued to assess the felt need and fix the strepgth of Judges
commensurate with the need to fulfil the State obligation of providing
speedy justice and to thereby 'secure that the operation of the legal system
H promotes justice' • a solemn resolve declared also in the Preamble of the
.
'
ADVOCATES ASSN. v. U.O.I.
675
Constitution. In making the review of the Judge strength in a High Court, A
the President must attach great weight to the opinion of the Chief Justice
of that 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. [776-F-H; 777-A]
6.3. Article 216 like all constitutional provisions, is not to be construed in isolation, but as a part of the entire wnstitutional scheme, conforming to the constitutional purpose and its ethos. So construed, this
matter is justiciable to the extent and in the manner iadicated. Of course,
the area of justiciability does not extend further, to enable the Court to
made the review and fix the actual Judge strength itself, instead of requiring the performance of that exercise in accordance with the recommendation of the Chief Justice of India. [777-B-C]
S.P. Gupta v. Union of India, [1982] 2 S.C.R.